dissenting:
In directing the clerk to enter a partial final judgment as to all claims against the N & W, Judge Elfvin, in compliance with Gumer v. Shearson, Hammill & Co., 516 F.2d 283 (2d Cir.1974), filed a “brief reasoned statement in support of his determination that ‘there is no just reason for delay’ ” which included the following language:
This Court also finds that there is no just reason to delay any appeal from this summary judgment. See Fed.R.Civ.P. [54(b)]. Indeed, if entry of final judgment is denied presently and, on appeal from the judgment involving the remaining defendants), it is determined that this Court’s January 15, 1991 summary judgment was incorrectly granted, a complete new trial would have to be held.
The majority does not “regard the district court’s reason for entering a Rule 54(b) certification as sufficient.” I disagree. The proper inquiry is whether Judge Elfvin abused his discretion in concluding that there was “no just reason for delay”, not whether we would reach the same conclusion. Since the majority’s dismissal of the appeal wastes judicial resources, is contrary to settled Supreme Court precedent, and, indeed, will likely require two full, virtually identical trials in the district court, I dissent.
As applicable to this case, Fed.R.Civ.P. 54(b) reads:
[W]hen multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the * * * parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.
This portion of the rule, which allows the entry of judgment when all of the claims as to one party are disposed of, was added in *10281961, because the “danger of hardship through delay of appeal until the whole action is concluded may be at least as serious in the multiple-parties situations as in multiple-claims cases”. Fed.R.Civ.P. 54 advisory committee’s notes on 1961 amendment.
While the majority gives passing mention that our review is for “abuse of discretion”, see, e.g., Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 10, 100 S.Ct. 1460, 1466, 64 L.Ed.2d 1 (1980), its decision grants no deference whatsoever to the district court’s “sound judicial discretion”. Id. at 8, 100 S.Ct. at 1465. By engaging in a de novo reweighing of the equities and reassessment of the facts, the majority also flouts the Supreme Court’s command that “the proper role of the court of appeals is not to reweigh the equities or reassess the facts but to make sure that the conclusions derived from those weighings and assessments are juridically sound and supported by the record”. Id. at 10,100 S.Ct. at 1466. But, “[t]he task of weighing and balancing the contending factors is peculiarly one for the trial judge, who can explore all the facets of a case.” Id. at 12, 100 S.Ct. at 1467.
The majority correctly cites Curtiss-Wright for the proposition that we review the discretion of the district court through the lens of “sound judicial administration”. 446 U.S. at 8, 100 S.Ct. at 1465. (I note parenthetically that the majority adds “efficiency” — a word which has justified many injustices throughout history — to the Supreme Court’s standard, ante, at 1025, despite the fact that the term does not appear in Curtiss-Wright.) Significantly, however, its view of “sound judicial administration” is not through a lens, but at a mirror, for the opinion is concerned only with the administration of the circuit court’s docket, and simply ignores the arguably greater need for “sound judicial administration” in the district court, which “must daily grapple with managing a crowded civil docket”. Perez v. Ortiz, 849 F.2d 793, 796 (2d Cir.1988) (finding appealable a 54(b) partial final judgment). By seeing the relationship between the district court and the circuit in this fashion, the majority drains the district court’s “discretion” of any significance whatsoever. The majority would review rule 54(b) certifications as the equivalent of our much different discretionary power to hear interlocutory appeals involving controlling questions of law under 28 U.S.C. § 1292(b), and this is simply wrong.
Under 28 U.S.C. § 1291, we “shall have jurisdiction of appeals from all final decisions of the district courts”, (emphasis added). Had Hogan sued the N & W separately, her claim would beyond question be “finally decided” within the meaning of § 1291. But under the federal rules, “the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties”, United Mine Workers v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966), and June Hogan heeded this impulse by joining both Conrail and the N & W as parties defendant. Rule 20(a) permitted her to do this: multiple parties may be joined in one civil action if the asserted claims for relief against the parties are “in respect of or arising out of the same transaction, occurrence, or series of transactions and occurrences and if any question of law or fact common to all [defendants] will arise in the action.” After Conrail asserted its third party claim for contribution against the N & W, as permitted by rule 14(a), the district court’s summary judgment dismissed both of these claims and let the N & W out of the case entirely.
Rule 54(b) contemplates this situation and expressly allows “the entry of a final judgment as to one or more but fewer than all of the * * * parties”. Under the majority’s approach, however, if parties are interrelated enough to merit joinder under rule 20(b), they are simultaneously too interrelated to merit a rule 54(b) partial final judgment when one of the parties is dismissed. This interpretation would write rule 54(b) out of the multiple-party context by judicial fiat.
There is yet more fundamental error in the majority opinion. It says that rule 54(b) partial final judgments should be entered only in “exceptional” cases where “unusual hardship” would be worked on *1029the litigants. Ante, at 1025. The only authority given for this proposition is a citation to the “infrequent harsh case” language of Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 445 (2d Cir.1985). This phrase — “infrequent harsh case” — originated in the advisory committee notes to the 1946 amendment to rule 54. But over a decade ago the Supreme Court, in Curtiss-Wright, chided the third circuit for using this term as a standard for rule 54(b) review: “the phrase ‘infrequent harsh case’ in isolation is neither workable nor entirely reliable as a benchmark for appellate review.” 446 U.S. at 10, 100 S.Ct. at 1466. Despite this admonition, the majority builds its opinion around the phrase “infrequent harsh case” and the similarly unworkable adjectives “exceptional” and “unusual”, and finds dismissable a case which is a paradigm for the use of rule 54(b).
Finally, the majority’s decision guts the efficacy of summary judgment. Rule 56 allows defendants, such as the N & W, “to demonstrate in the manner provided by the Rule, prior to trial, that the claims [asserted by the plaintiff] have no factual basis.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). The N & W, believing that there were no genuine issues of material fact as to their causal role in Michael Hogan’s death, moved for dismissal from the case. The district court agreed, and — but for the appeal — the N & W’s attorneys could have packed their bags, closed their file, and billed their client for a job well done. If no appeal had been taken, the summary judgment would have served its purpose of streamlining the case in the district court, and avoided “the attendant unwarranted consumption of public and private resources.” Id.
But since there was this attempted appeal, and a dismissal thereof, the N & W is left in litigation limbo. Are they in or out of the case? Judge Elfvin said “out”, but the majority says “not so fast”. The majority’s proposed solution seems to be to keep the order of dismissal “interlocutory” and subject to later revision should “further discovery by plaintiff or further investigation by Conrail * * * bring to light evidence sufficient to warrant submitting claims against N & W to a jury.” What should the N & W’s attorneys now do? Close their file? Or should they continue to conduct discovery in this case from which they have been dismissed, in the event that further discovery by the other parties may bring up a genuine issue of material fact? Does the N & W even have standing to participate in future discovery or at trial? Since there is a risk (a good one, at that) of ultimate reversal of this “interlocutory” final judgment, once the entire case comes up on appeal from the “final” final judgment, should the N & W send a representative with a checkbook to settlement discussions? These and other questions leave all parties and the district court in a most unsatisfactory situation.
Judge Elfvin’s conclusion that “a complete new trial would have to be held” if the summary judgment was improperly granted is not clearly erroneous; to the contrary, it is clearly correct. This case will now go to trial as June Hogan v. Conrail, and the following paradox is quite clear:
1. If Hogan wins the first trial, Conrail will appeal, relying on the incorrect grant of summary judgment to the N & W.' We will reverse, and a retrial of the same liability facts must be held on Conrail’s cross-claim, against the N & W, for contribution.
2. If Conrail wins the first trial, Hogan will appeal, relying on the incorrect grant of summary judgment to the N & W. We will reverse, and a retrial of the same liability facts must be held on Hogan’s direct claim against the N & W.
Either way, final resolution of this controversy will require not one but two expensive, time-consuming trials of the same liability facts. Although we could readily save the litigants and the district court this wasteful duplication and its attendant uncertainties by reviewing at this time the documentary record before us to determine the relatively simple issue of whether summary judgment was properly granted, the majority insists that Judge Elfvin proceed *1030without our guidance on that issue and that he do so with the N & W hanging in limbo and with the knowledge that he may very well have to try the same case twice.
The majority suggests that Judge Elfvin could have avoided this injustice by “tak[ing] care not to grant summary judgment without viewing all the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in favor of that party”. Ante, at 1026. In other words, “District judges, don’t grant summary judgment unless you’re really sure you’re right.” I thought district judges always did that.
I suspect that the majority drops this surprising hint on the merits because it sees this as a close case on the merits. So do I. But the majority seems to think that rule 54(b) gives us some measure of discretion whether to hear the appeal, and this is where I part company with my colleagues. They seem to expect the district court somehow to correct its own error without being told it is in error, while it seems apparent that, before entering its partial final judgment, the district court believed that it had already “take[n] care not to grant summary judgment without viewing all the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in favor of that party”.
Finally, as a policy consideration, if applied generally the majority’s approach would impose rigidity on the district courts where flexibility is desperately needed. In the name of justice and efficiency, the majority has reached the most unjust and inefficient result possible on this record. Judge Elfvin properly certified under rule 54(b) a final judgment dismissing all of Hogan's and Conrail’s claims against the N & W.
Our rejection of this appeal reflects a profound misunderstanding of rule 54(b). I hope that this case is seen in the future merely as an unfortunate aberration in rule 54(b) jurisprudence.