No Finality by Abandoning Claims Before Trial

In Simmons v. USI Insurance LLC, the Eleventh Circuit held that the purported abandonment of a counterclaim before trial was ineffective and thus precluded appellate jurisdiction. The counterclaim was the only theory of relief that had not been resolved at summary judgment or trial. And in a written notice before trial, the defendant had said it no longer intended to pursue the theory. The Eleventh Circuit nevertheless held that the counterclaim remained unresolved. And without a decision on all the parties’ claims, there was no final, appealable decision.

The past few years have seen some courts repeatedly hold that litigants cannot voluntarily dismiss discrete claims (rather than dismissing an entire action). These decisions have me wondering: how often are courts addressing discrete claims rather than discrete theories of relief? Although lawyers and judges frequently conflate claims and theories (and doing so is often harmless), there is a difference between the two. And whatever the limits on voluntarily dismissing discrete claims, I don’t see why there should be any limits on parties’ abandoning discrete theories.

The Purported Abandonment in Simmons

Simplifying a bit, the plaintiffs in Simmons were former employees of the defendant. They sought a declaration that the restrictive covenants in their employment contracts were unenforceable. The defendant responded with a variety of counterclaims, including one for civil conspiracy. The district court later granted summary judgment against the plaintiffs on all their claims. That left only the former employer’s counterclaims for trial.

Before trial, the defendant submitted a written notice to the district court that it would not proceed to trial on the civil-conspiracy theory. So the defendant’s other theories went to trial, where the defendant prevailed.

Both sides then appealed—the plaintiffs from the adverse summary-judgment decision, and the defendant from the denial of some post-judgment motions.

The Eleventh Circuit on Purported Voluntary Dismissals Unresolved Claims

The Eleventh Circuit has issued several decisions in the past few years on litigants’ attempts to voluntarily dismiss some of their claims. Litigants’ efforts normally come via Federal Rule of Civil Procedure 41(a). But Rule 41(a) permits litigants to voluntarily dismiss an “action.” And the Eleventh Circuit has held that this rule means what it says: litigants can use Rule 41(a) only to dismiss entire actions, not discrete claims. Some exceptions to this rule exist. But for the most part, the Eleventh Circuit says that parties must eliminate discrete claims via other routes, such as an amendment to the pleadings.

The Purported Abandonment in Simmons

The Eleventh Circuit held that the purported abandonment of the civil-conspiracy theory was another failed attempt to voluntarily dismiss a discrete claim. Although the Eleventh Circuit allows parties to abandon a claim at trial in response to the judge’s questioning, the court refused to extend that rule to a written, pretrial abandonment. Insofar as the defendant’s pretrial notice could be treated as a Rule 41 voluntary dismissal, it was ineffective because it did not dismiss the entire action. And the defendant had not amended its pleadings to remove the civil-conspiracy theory.

Voluntary Dismissal of Claims and Theories

I see at least two issues with this decision.

The first is specific to Simmons: the court’s refusal to give effect to a written, pretrial abandonment of a theory of relief. Once the defendant submitted that notice, there was no prospect of relief on that theory—it was gone, and any effort to pursue it would have failed. To say that the theory somehow remained—and require a party to jump through procedural hoops to abandon it—seems unnecessary. After all, the defendant will easily be able to cure this defect back in the district court. Nothing will really change. And procedural wheels will spin for no reason.

The second issue has more to do with the caselaw on abandoning claims versus actions. I think that in many of these cases, litigants are not trying to voluntarily dismiss discrete claims (much less entire actions). They’re trying to forgo discrete theories of relief.

Claims and theories are different things. To be sure, lawyers often conflate the two, and rarely does any mischief come from doing so. But a claim is a transaction or occurrence (or series of them) that gives rise to an injury and a right to recover under one or more legal theories. So while a party might have multiple theories of why they are entitled to damages for an injury—both negligence and strict liability, for example—that party might still have only a single claim.

So the defendant in Simmons might have had several theories of relief against each plaintiff. But it looks like the defendant had only a single claim against each, stemming from each plaintiff’s breach of their employment contract. Civil conspiracy was simply a theory supporting that claim.

I don’t know of any rule that says parties cannot abandon discrete theories of relief. In fact, it makes complete sense to let them.

Relatedly, I question the suggestion that parties need to amend their pleadings to abandon theories of relief. Parties do not need to plead law. So the legal theories a party pursues do not need to appear in a pleading. Granted, lawyers often include them. But doing so is unnecessary. So parties should not need to amend their pleadings to remove discrete theories; their inclusion in the first place is immaterial and harmless.

Simmons v. USI Insurance LLC, 2025 WL 3252333 (11th Cir. Nov. 21, 2025), available at the Eleventh Circuit and Westlaw