dissenting.
Rule 54(b) of the Federal Rules of Civil Procedure “is limited expressly to multiple claims actions in which ‘one or more but [fewer] than all’ of the multiple claims have been finally decided and are found otherwise to be ready for appeal.” Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435, 76 S.Ct. 895, 899, 100 L.Ed. 1297 (1956). Rule 54(b) does not expand the jurisdiction conferred by 28 U.S.C. § 1291; “it does not relax the finality required of each decision____” 351 U.S. at 435, 76 S.Ct. at 899. Before entering judgment under Rule 54(b), therefore, “[a] district court must first determine that it is dealing with a ‘final judgment.’ It must be a ‘judgment’ in the- sense that it is a decision upon a cognizable claim for relief, and it must be ‘final’ in the sense that it is ‘an ultimate disposition of an individual claim entered in the course of a multiple claims action.’” Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 7, 100 S.Ct. 1460, 1464, 64 L.Ed.2d 1 (1980) (quoting Sears, Roebuck & Co., 351 U.S. at 436, 76 S.Ct. at 900). “Rule 54(b) ... does not cover a partial adjudication of a single claim, even if other claims are presented in the case.” Indiana Harbor Belt R.R. v. American Cyanamid Co., 860 F.2d 1441, 1444 (7th Cir.1988).
The majority and the parties focus on Lawyers Title’s demand for the return of the $566,000 paid by a Dearborn check to United. This demand is supported by two theories of liability: payment by mistake and fraudulent conveyance. The district court did not completely adjudicate this matter; it retained $70,000 of the claim for trial.1 Having retained a portion of Lawyers Title’s claim for later disposition, the district court did not *1168create jurisdiction in this court by entering a purported Rule 54(b) judgment. See Indiana Harbor Belt R.R., 860 F.2d at 1444.
In an effort to justify the Rule 54(b) judgment, the majority parses even further the $566,000 check in an effort to find underlying “claims” that are analytically separate. Neither the manifest legislative policy of requiring a final decision as a predicate to appellate jurisdiction nor the ease law of the circuit supports such an extension of Rule 54(b). The $70,000 “claim” retained by the district court arises out of an alleged contract whereby Dearborn agreed to pay a rental fee to United for using United’s offices for closings. The fee for such use, as alleged, was $300 per closing if United was the mortgage lender and $100 if it was not. The district court determined that the $200 premium was a kickback and entered judgment with respect to the $200 premiums, but retained for trial the remaining “claim” for $70,000 ($100 multiplied by the relevant number of closings). The $300 payments, according to the majority, can be broken into separable claims: one claim includes the $100 portion of the payments and another the $200 portion.
I cannot concur with my colleagues that the rental contract can be dissected so that the fees paid under it reside in separate claims. Cf. Buckley v. Fitzsimmons, 919 F.2d 1230, 1238 (7th Cir.1990) (holding that different incidents were too related to give rise to separate claims for purposes of Rule 54(b)), vacated on other grounds, 502 U.S. 801, 112 S.Ct. 40, 116 L.Ed.2d 19 (1991). The majority asserts that the second appeal will not require us “to go over the same ground” covered by this appeal. Ante, at 1162. To be sure, we have said many times before that two claims are separate if the facts and legal theories of the two claims do not overlap to an unacceptable degree. See, e.g., NAACP v. American Family Mut. Ins. Co., 978 F.2d 287, 292 (7th Cir.1992), cert. denied, 508 U.S. 907, 113 S.Ct. 2335, 124 L.Ed.2d 247 (1993); Buckley, 919 F.2d at 1237-38; Olympia Hotels Corp. v. Johnson Wax Dev. Corp., 908 F.2d 1363, 1366-67 (7th Cir.1990). Yet the majority applies a seemingly unbounded interpretation of these cases; it asserts that the factual overlap between the two appeals will be “limited to the bare bones of the relationship between Dearborn and United—these bare bones constituting the background to the contract dispute retained by the district court.” Ante, at 1163.2 However, the “background” facts of the rental contract between Dearborn and United consist of, and will require the second appellate panel to learn (or relearn), most of the facts set forth in the majority and district court opinions. See Indiana Harbor Belt R.R., 860 F.2d at 1444 (noting that “the most important purpose behind the drafters’ decision to confine the scope of Rule 54(b) to situations where one of multiple claims is fully adjudicated” is “ ‘to spare the court of appeals from having to keep relearning the facts of a case on successive appeals.’ ”) (quoting Jack Walters & Sons Corp. v. Morton Bldg., 737 F.2d 698, 702 (7th Cir.), cert. denied, 469 U.S. 1018, 105 S.Ct. 432, 83 L.Ed.2d 359 (1984)). The second appeal, if there is one, will require knowledge of the same three parties, the same $566,000 check, the same payment by mistake theory, the same rental contract, and the same rental payments.
True, the issues surrounding the $100 portions of the rental payments (e.g., whether a contract existed) are in some ways different from the issues surrounding the $200 portions (e.g., whether the premium was an illegal kickback). But, unlike 28 U.S.C. § 1292(b) (under which our review is discretionary and the district court’s required findings are different), Rule 54(b) does not *1169empower a district court to make an issue appealable. Buckley, 919 F.2d at 1236-37. Here, the district court effectively certified the issue whether the $200 premiums were unlawful kickbacks without satisfying the rigors of § 1292(b). See Tolson v. United States, 732 F.2d 998, 1000-01 (D.C.Cir.1984).
It is also unsettling the degree to which the litigation yet to occur in the district court may moot the issues decided in this appeal.If later litigation were to determine that there was never a contract for rental fees, for example, the question whether $200 of each $300 payment was an illegal kickback would be academic and today’s opinion on that issue advisory. Other defenses to the $100 claim retained likewise could apply to the $200 claim decided. “The possibility that developments in the litigation may moot a claim suggests that appellate resolution be deferred” and “makes improvident the parties’ and the judges’ investment of resources to produce a speedy appellate ruling.” Horn v. Transcon Lines, Inc., 898 F.2d 589, 592 (7th Cir.1990); accord id. at 593 (“Potential mootness ... augurs against immediate appeal.”); Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 580 (1st Cir.1994). Indeed, Lawyers Title could conceivably raise defenses at trial to the rental contract that would negate United’s claim of right to the entire $566,000. As a result, the specter exists that this first appeal could be mooted in its entirety or, depending on the defenses raised by Lawyers Title at trial, legal issues duplicative of those in this appeal could present themselves in the second appeal. Lawyers Title may even resurrect its fraudulent conveyance theory; if successful, the issues decided today are resolved unnecessarily. Additionally, the principles of res judicata would preclude splitting the claims in this case—a fact that we have recognized as relevant, though not decisive. See NAACP v. American Family Mut. Ins. Co., 978 F.2d at 292; Olympia Hotels Corp., 908 F.2d at 1367.
The majority’s approach, applied in such a liberal fashion, is totally undisciplined. It would, for instance, allow a district court to enter a Rule 54(b) judgment in a simple torts ease upon deciding that the defendant is hable and that the plaintiff is entitled to a sum certain for an injured arm, although the court saves for trial the damages to be awarded on account of the plaintiffs injured leg. The second appeal in this hypothetical case would not require the appeals court to “cover the same ground” again; the factual overlap would be limited to the mere “background” facts of the accident and the second appeal would not likely concern the same legal issues. Nevertheless, it is manifest that a Rule 54(b) certification is improper if the district court has merely granted a partial summary judgment on the issue of liability when assessment of damages remains. See, e.g., Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 583 n. 21, 100 S.Ct. 800, 807 n. 21, 63 L.Ed.2d 36 (1980); Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744, 96 S.Ct. 1202, 1206-07, 47 L.Ed.2d 435 (1976); 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2656, at 52-54 & n. 24. In this case, there has not even been a determination of liability (or non-liability) as to the rental contract, but merely a partial determination with respect to liability that Lawyers Title is entitled to $200 out of each $300 payment (or, stated conversely, that United is not entitled to a setoff of $200 of each $300 payment).
The majority’s new approach to Rule 54(b) is simply too permissive to square with the congressional decision to require a “final decision” or with our case law. See Horn, 898 F.2d at 592 (“The tension between the presumptive rule of one appeal per case and the utility of segregating separate claims for immediate appeal makes it important to define a ‘claim’ with care, lest the exception swallow the rule.”). Under its application, as exemplified by this case, Rule 54(b) orders embody the norm. Rule 54(b) judgments, however, are supposed to be the exception, not the rule. Buckley, 919 F.2d at 1237-38; Wright, Miller & Kane, supra, § 2656, at 47-48. “To avoid time-consuming duplicative appeals, the norm in litigation—embodied in the general rule that a final judgment is one that leaves nothing to be decided—is one appeal per case.” United States v. Ettrick Wood Prods., Inc., 916 F.2d 1211, 1218 (7th *1170Cir.1990) (per curiam); accord Horn, 898 F.2d at 592 (“Rule 54(b) departs from the norm of one appeal per case, a norm that prevents duplicative and time-consuming appeals.”). Requiring Lawyers Title and United to litigate the $70,000 “claim” before proceeding in our court would have saved our time and probably eliminated the need for our deciding some or all of the issues tackled today. Accordingly, this case should be sent back to the district court for the resolution of the remaining $70,000 dispute. Afterwards, consistent with the approach to appellate jurisdiction chosen by the Congress, we would then be presented with one appeal.
Although our circuit has acknowledged, as a general proposition, the wisdom of the “pragmatic approach” to appellate jurisdiction announced by the Supreme Court in Brown Shoe Co. v. United States, 370 U.S. 294, 306, 82 S.Ct. 1502, 1513, 8 L.Ed.2d 510 (1962), we have also acknowledged that only the most disciplined pragmatism will preserve the congressional intent of making finality the general rule of federal appellate procedure. In this regard, our ease law is consonant with that of the other circuits. See generally 15A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3913, at 464-65. We have sought to avoid adopting “a pretense of finality to explain a conclusion that really rests on a desire to relax the rigid jurisdictional character of finality requirements.” Id. at 465. Today’s decision sorely tests our perseverance to remain faithful to the congressional choice. I would dismiss this appeal for lack of jurisdiction.
. Although counsel’s view is not controlling, it is interesting to note that counsel for Lawyers Title conceptualized his client's claim in the same manner as I. Indeed, although counsel requested Rule 54(b) certification and contended on appeal that the certification was proper, counsel nevertheless held the belief that the district court did not fully adjudicate Lawyers Title’s claim. When asked at oral argument, “[The district court] did not adjudicate your entire claim?” counsel responded flatly, "That is right.”
. Because it is sometimes difficult to determine whether the degree of factual overlap between two claims is so extensive that the claims are not separable, we have said that we shall not disturb a district court’s discretion in this regard if "thoughtfully exercised.” Buckley, 919 F.2d at 1237-38; accord Olympia Hotels Corp., 908 F.2d at 1367-68. No deference is due in this case, however, because the district court’s order does not consider whether the retained claims are separate from those on appeal. See Buckley, 919 F.2d at 1238 (also stating that "district judges may not reflexively enter Rule 54(b) judgments just because the parties want to appeal”). Moreover, in its opinion explaining its reasoning and disposition, the district court treats Lawyers Title’s right to recover the money as a functional claim for relief. The court treats the rental contract dispute primarily as a setoff claim of United.