"[T]he facts on which choice-of-law depends are properly determined by the Court after considering the affidavits, depositions, and other matters submitted by the parties." Nunez v. Hunter Fan Co., 920 F. Supp. 716, 718 (S.D.Tex. 1996).

When determining which state's contract law to apply in the absence of a valid choice-of-law provision, Texas courts use the "most significant relationship" choice-of-law analysis outlined in the Restatement (Second) of Conflict of Laws. R.R. Mgmt. Co., L.L.C. v. CFS La. Midstream Co., 428 F.3d 214, 222 (5th Cir. 2005); Kira, Inc., 2006 WL 2193006, at *5; Nunez v. Hunter Fan Co., 920 F. Supp. 716, 718 (S.D. Tex. 1996). Factors used to determine the law that applies include: (a) the place of contracting; (b) the place of negotiation of the contract; (c) the place of performance; (d) the location of the subject matter of the contract; and (e) the domicile, residence, nationality, place of incorporation, and place of business of the parties.

Here, however, where the sole issue involves the Court's determination of what law applies, the traditional standard for summary judgment does not apply. See Nunez v. Hunter Fan Co., 920 F. Supp. 716, 717-18 (S.D. Tex. 1996). Rather, the choice of law determination is a question of law. See Woodfield v. Bowman, 193 F.3d 354, 358 (5th Cir. 1999); Mayo v. Hartford Life Ins. Co., 220 F. Supp. 2d 714, 730 & n.37 (S.D. Tex. 2002); Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex. 1984).

Notably, the Missouri Court of Appeals and numerous other state and federal courts have looked to § 196 in the context of employment contracts. Ranch Hand Foods, 690 S.W.2d at 441 n. 2; see also, e.g., Dinan v. Alpha Networks, Inc., 764 F.3d 64, 69 (1st Cir. 2014) (applying § 196 of the Second Restatement to an action for breach of contract and quasi-contract concerning an employment agreement); Ingram v. Rencor Controls, Inc., 256 F. Supp. 2d 12, 17 (D. Me. 2003) (applying § 196 to an employment contract); McGough v. Nalco Co., 496 F. Supp. 2d 729, 743 (N.D. W. Va. 2007) (same); Nunez v. Hunter Fan Co., 920 F. Supp. 716, 719 (S.D. Tex. 1996) (same); Sullivan v. Oracle Corp., 254 P.3d 237, 244 (Cal. 2011) ("Section 196 identifies the state whose law governs the validity of an employment contract.") (emphasis in original); Second Restatement § 196, comment a (explaining that § 196 applies "to contracts with servants, independent contractors and agents . . . .").

SeeToll v. Tannenbaum , 982 F.Supp.2d 541, 551–52 (E.D.Pa. 2013) (adopting the holdings of the Fifth and Seventh Circuits that it is for the court to make factual findings necessary to a choice of law determination using a preponderance of the evidence standard), aff'd , 596 Fed.Appx. 108 (3d Cir. 2014) ; Coltec Indus. Inc. v. Zurich Ins. Co. , No. 99–CV–1087, 2004 WL 413304, at *4 (N.D. Ill. Jan. 30, 2004) ("The court, not the jury, is responsible for making any factual determinations necessary to resolve the choice-of-law issue based on a preponderance of the evidence standard." (citing Chance v. E.I. du Pont De Nemours & Co., 57 F.R.D. 165, 171 (E.D.N.Y. 1972) )); Nunez v. Hunter Fan Co. , 920 F.Supp. 716, 717–18 (S.D. Tex. 1996) ("Because choice-of-law is the dispositive issue, the summary judgment standard with regard to disputed facts does not apply. Instead, the facts on which choice-of-law depends are properly determined by the [district] Court after considering the affidavits, depositions, and other matters submitted by the parties.

Barrett v. Atlantic Richfield Co., 95 F.3d 375, 383 (5th Cir. 1996) (citing Celotex Corp. v Catrett, 477 U.S. 317, 323 (1986)). Southern Serv. Corp. v. Tidy Bldg. Servs, Inc., 2004 WL 2784909, at *4 (E.D. La. Dec. 1, 2004) (internal quotation marks omitted) (citing Nunez v. Hunter Fan Co., 920 F. Supp. 716, 718 (S.D. Tex. 1996)). Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 391 (5th Cir. 2009).

See Snyder Oil Corp. v. Samedan Oil Corp., 208 F.3d 521, 523 (5th Cir.2000) (reviewing whether district court's state adjacency analysis under OCSLA was correct as a matter of law). In this case, because a choice of law determination is a question of law, the traditional standard for summary judgment does not apply. Vargas v. Kiewit Louisiana Co., No. H–09–2521, 2012 WL 1029517, at *2 (S.D.Tex. Mar. 26, 2012) (Ellison, K.) (citing Nunez v. Hunter Fan Co., 920 F.Supp. 716, 717–18 (S.D.Tex.1996) ). Instead, the facts on which choice of law depends are properly determined by the Court after considering the affidavits, depositions, and other matters submitted by the parties.

The Court is aided in that task by the documents, depositions, and other evidence collected during discovery, as well as the live testimony and additional exhibits submitted during the choice-of-law evidentiary hearing. See Nunez v. Hunter Fan Co., 920 F.Supp. 716, 718 (S.D.Tex.1996) (“[T]he facts on which choice-of-law depends are properly determined by the Court after considering the affidavits, depositions, and other matters submitted by the parties.”); DuSesoi, 540 F.Supp. at 1268 (“[W]hen the factual record is adequately developed, summary judgment determination of the applicable law is entirely appropriate.”). As it does when resolving contested jurisdictional facts, the Court can resolve disputes of choice-of-law facts using the preponderance of the evidence standard.

"Courts in this circuit have held that factual determinations which are antecedent to the choice of law determination may properly be determined by the district court 'after considering the affidavits, depositions, and other matters submitted by the parties.' " So. Serv. Corp. v. Tidy Bldg. Servs., Inc., No. 04-1362, 2004 WL 2784909, at *4 (E.D. La. Dec. 1, 2004) (Africk, J.) (quoting Nunez v. Hunter Fan Co., 920 F. Supp. 716, 718 (S.D.Tex.1996)). In assessing the availability of punitive damages with respect to Federal Rule of Civil Procedure 12(b)(6), however, the Court must accept all well-pleaded facts as true and liberally construe all factual allegations in the light most favorable to the plaintiff.

In its choice of law analysis, the Court may make factual determinations. See Nunez v. Hunter Fan Co., 920 F. Supp. 716, 717-18 (S.D. Tex. 1996). The facts on which choice-of-law depends are properly determined by the Court after considering the affidavits, depositions, and other matters submitted by the parties.