PURPOSIVIST REASONING IN FEDERAL CIVIL PROCEDURE

This invited Article both reviews the Tenth Circuit's stance on the circuit split addressing repleading counterclaims in amended answers and observes broader interpretive-approach trends in Federal Rules of Civil Procedure cases. In Sinclair Wyoming Refining Co. v. A & B Builders, Ltd., the Tenth Circuit holds that, absent prejudice to the opposing party, the failure to replead a counterclaim in an amended answer does not constitute abandonment; thus, taking the so-called permissive side of a circuit split on this question. In so doing, the Tenth Circuit adopts a purposivist ap-proach to interpretation of the Federal Rules of Civil Procedure. In review-ing all of the Tenth and other circuits' significant, published, 2021, Federal Rules of Civil Procedure cases, we conclude that the circuits deploy tex-tualist reasoning less often for Rules issues than they do for other ques-tions. In particular, we find that both the Tenth Circuit, at 1.9%, and the other circuits, at 1.8%, deployed textualist reasoning seldomly for Rules issues. Yet, in this same dataset of cases, the courts used textualist reason-ing for non-Rules issues often: the Tenth Circuit, at 23.1%, and the other circuits, at 21.3%. We also found the Tenth Circuit, at 1.9%, trailed the other circuits, at 5.3%, in the use of purposivist reasoning in Rules anal-yses.