                                                             United States Court of Appeals
                                                                      Fifth Circuit
                 IN THE UNITED STATES COURT OF APPEALS            FILED
                         FOR THE FIFTH CIRCUIT                October 21, 2005
                         _____________________
                                                           Charles R. Fulbruge III
                              No. 04-11073                         Clerk
                         _____________________

WENDALEE VANNOY,

                                                 Plaintiff - Appellant,

                                versus

VERIO INC., doing business as NTT/Verio,

                                            Defendant - Appellee.
_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                      USDC No. 3:02-CV-570-K
_________________________________________________________________

Before JOLLY and BARKSDALE, Circuit Judges, and LITTLE, District
Judge.1

PER CURIAM:2

     After a review of the record, study of the briefs, and

consideration of oral argument, we are convinced that the law of

Delaware is the appropriate law to apply in the determination of

this case.     In this respect the district court did not err.

     We have noted that there was no pretrial order in this case

and that the question of choice of law was not presented to the

court until the first day of trial.      Although the court considered


     1
      District Judge of the Western District of Louisiana, sitting
by designation.
     2
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
the issue presented, the case nevertheless was tried and decided by

the jury on the basis of Texas law.          Thereafter, in response to the

defendant’s     motion   for   judgment       as    a    matter    of    law   or,

alternatively, for a new trial under rules 50(c) and 59 of the

Federal Rules of Civil Procedure, the district court set aside the

verdict of the jury in favor of the plaintiff and entered a

judgment for the defendant. In this respect, we think the district

court abused its discretion. Under the circumstances of this case,

the more appropriate response would have been to set aside the

verdict and order a new trial on the basis of Delaware law.

Therefore, we vacate the judgment and remand this case.

     The district court should allow amendments to the pleadings,

appropriate discovery, motions and briefing (and argument if the

court chooses) regarding the proper application of Delaware law to

these facts, and a new trial if required.                   Consequently, the

judgment   is   VACATED,   and   the       case    is   REMANDED   for    further

proceedings not inconsistent with this opinion.

                                                        VACATED and REMANDED.




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