concurring and dissenting.
I concur that Peterson’s appeal from denial of his motion to amend his complaint against Interstate is interlocutory and not appealable. I respectfully dissent from the dismissal of the appeal from the summary judgment which dismissed all claims against Zerr.
N.D.R.Civ.P. 54(b) instructs: “[I]f 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.”
The trial court dismissed all of Peterson’s claims against Zerr. The trial court declared that it was a complete and final disposition of claims between them, expressly determining that there was no just reason for delay and expressly directing entry of judgment.
If Peterson had sued Zerr separately, as he was entitled to do under Rule 20 on “Permissive Joinder of Parties,” the judgment would be final and appealable. If the trial court had clearly severed the claim against Zerr under Rule 21 (“Any claim against a party may be severed and proceeded with separately”), and then entered this summary judgment, the judgment would have been appealable without Rule 54(b) action. Similarly, under Rule 54(b), a trial court may direct the entry of a final judgment as to one of several parties — a “single judicial unit.” 6 Moore’s Federal Practice ¶ 54.04. The majority decision ignores the evolution of the “single judicial unit” theory, distorts the history of Rule 54(b), and unwittingly rewrites the Rule about judge-made finality for appeals.
The depressing feature of this 54(b) certification by the trial court is not that one was made, but the garrulous explanation in the “Clarifying Order” which seems to have been prepared by appellant’s counsel, not by the trial court. Since Rule 54(b) directs no set procedure for initiating a certification, it is not surprising to find an appellant’s counsel aiding the process of judge-made finality. .“The reasons why there is ‘no just reason for delay’ and the importance to ‘sound judicial administration’ must satisfactorily appear before this court will entertain piecemeal appeals.” Estate of Stuckle, 427 N.W.2d 96, 103, footnote 18 (N.D.1988) (Meschke, concurring). It should be enough if we can discern the reasons for the trial court’s certification, even if those reasons are obscured by a foliage of wordiness.
Stripped of its verbiage, the trial court’s “Clarifying Order” gave three reasons for its entry of a final judgment:
1. “Final judgment avoids the possibility of two trials.... ”
2. There is “reason to anticipate that a trial against Interstate Investment [alone] might avoid the need for an appeal.”
3. The issues as to Zerr “do not appear to be similar” to those “involving Interstate.”
The majority opinion reweighs the third reason, redetermines that the “claims against both Zerr and Interstate arise from the same series of underlying transactions and occurrences and are related both factually and legally,” and, therefore, concludes that this factor “weighs heavily against Rule 54(b) certification.” The majority thus rejects one of the trial court’s reasons supporting an appeal and substitutes its own reason “weighing heavily against” ap*302peal. Compare the majority decision to the charting of this factor by the United States Supreme Court in its landmark opinion in Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 9, 100 S.Ct. 1460, 1465, 64 L.Ed.2d 1 (1980):
“It was therefore proper ... to consider such factors as whether the claims under review were separable from the others remaining to be adjudicated and whether the nature of the claims already determined was such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals.”
As the United States Supreme Court long ago ruled in Cold Metal Process Co. v. United Engineering Foundry Co., 351 U.S. 445, 450-452, 76 S.Ct. 904, 907-909, 100 L.Ed. 1311 (1956) and as Alcan Aluminum Corp. v. Carlsberg Financial Corp., 689 F.2d 815 (9th Cir.1982) has more recently explained, Rule 54(b) does not require that claims adjudged must be separate from and independent of those retained.1
Peterson’s claims against Interstate and Zerr are sufficiently separable to be sever-able. To be sure, at some points in his prolix amended complaint, Peterson claimed that Interstate and Zerr, “jointly and severally, intentionally” interfered with Peterson’s lease rights. (For example, paragraph X.) Nevertheless, the complaint against Zerr had a different frame of reference than the complaint against Interstate. Interstate was Peterson’s landlord, and Peterson alleged separate elements as to Interstate. (See paragraphs I, V, XII, XIII, and XIV of the complaint.) Zerr, on the other hand, was a stockholder and officer in a corporate subtenant, having purchased his stock from Peterson (See paragraph II) and later transferring his corporate interest to others who settled with Peterson (See paragraphs III, IV, VII, VIII, and IX). Interstate’s cancellation of its 1978 primary lease with Peterson was obviously a major event of “interference” with Peterson’s sublease to Golden West, quite apart from downstream conduct by Zerr contributing to this contractual melee. While Peterson sought damages from both Interstate and Zerr, Peterson grounded his claim on different conduct by each. As the separate summary judgment attests, Peterson’s claim against Zerr is sufficiently sev-erable from his claim against Interstate to justify an independent disposition.
The majority opinion also rejects the second reason, concluding that “an absence of the possibility that the need for review may be obviated by future developments in the trial court is not, standing alone, reason to certify under Rule 54(b).” (My emphasis). Declaring that “[t]he allegations against Zerr and Interstate arise out of the same facts and circumstances,” the majority appraises this reason from an appendix perspective rather than the trial court’s intimate knowledge of the entire case. Again, the majority revises the trial court’s findings and ignores a recognized factor that “no appellate court would have to decide the same issues more than once.” Curtiss-Wright Corp., 446 U.S., at 9, 100 S.Ct., at 1465.
Finally, the majority expresses doubt that the belief “that immediate appellate review might avoid the possibility of two trials” is a valid juridical factor. In any event, the majority concludes that “this consideration does not alone afford sufficient warrant for granting a Rule 54(b) certification.” (My emphasis). I think the majority is dead wrong. Undoubtedly, there are cases where the possibility of the impact of duplicative trials is so minimal as not to be credited. But, a choice between the possibility of two complex trials or two narrow appeals is one the trial court is *303better able to make. All finality is made by trial courts. Conservation of judicial energy and elimination of delays are not subjects. of exclusive appellate wisdom. We should not arrogate to ourselves, as appellate judges, complete control of the effectiveness and efficiency of judicial administration.
While piecemeal appeals are to be avoided where appropriately possible, avoiding lengthy and costly multiple trials is an equally worthy objective. Lengthy repetitious trials drain both private and public resources, often more than several appeals on distinct issues. The time and effort of appellate judges is not paramount to fairness for witnesses and litigants.
After picking apart the trial court’s assessment of juridical factors and making each fall when “standing alone,” the majority opinion assumes that there is no “harsh economic effect” on the parties and concludes that “[mjissing in this case is a showing of any out-of-the-ordinary circumstances or cognizable, unusual hardships to the litigants.” I believe the majority’s conclusion is as mistaken as its analysis.
First, the majority leans heavily on the outdated and discredited reference to the “infrequent harsh case.” This phrase was used in the Notes of the Advisory Committee in 1946 when Rule 54(b) was first designed for multiple claims. Multiple parties were not made expressly subject to the rule until 1961. Union State Bank v. Woell, 357 N.W.2d 234, 237, footnote 4 (N.D.1984) gave this vague phrase undeserved dignity by declaring that it “accurately reflects the stated intent of Rule 54(b)_”2 But, the phrase does not express a measurable standard. The United States Supreme Court has pointed out, Curtiss-Wright Corp., supra, 446 U.S., at 10, 100 S.Ct., at 1466, that the phrase, “infrequent harsh case,” “is neither workable nor entirely reliable as a benchmark for appellate review. There is no indication it was ever intended by the drafters to function as such.”
Second, though not set out in the trial court’s “Clarifying Order,” there is an evident “harsh economic effect” to this summary judgment. Peterson, the plaintiff, is compelled to pay a $3,656.32 judgment before trial of his main lawsuit. He must pay Zerr now even though he must delay final resolution of his claim against Zerr until after separate trial of his claim against another. Perhaps the majority considers $3,656 insubstantial, even if it is not nominal. By implication in the ruling of the majority, we are given to understand either that $3,656 is not a “harsh economic effect” or that the trial court was derelict in not mentioning it as an obvious reason.
Third, the majority’s emphasis on a “harsh economic effect” as a separate, albeit uncodified, criterion of Rule 54(b) action is procedurally hostile to any intermediate appeal by a plaintiff. I am not reassured by the recital that “a harsh economic effect is not the only adverse effect that is cognizable for Rule 54(b) purposes” when no other cognizable “adverse effect” is identified. The majority opinion does not describe any occasion when a plaintiff will be able to appeal the dismissal of one or more defendants. Since a plaintiff, as “the *304losing party[,] pays out no money,” (recited in the quotation on page 300 of the majority opinion), there can be no “adverse economic effect” to a plaintiff from dismissal of one of his claims or from dismissal as to one of his defendants. I believe this stated approach narrows 54(b) too far, stripping the trial court of its intended discretion and construing Rule 54(b) as a one-way avenue for appeals by losing defendants only. As in Curtiss-Wright Corp., supra, a defendant can appeal as soon as he has to pay money; a plaintiff cannot appeal immediately when he doesn’t get any. Narrowing Rule 54(b) in that way is a procedural perversion.
The majority opinion undercuts the substantial deference that should be given to the trial court’s determination that there is no just reason for delay:
“[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. As we have noted, that assessment merits substantial deference on review.” Curtiss-Wright Corp. v. General Elec. Co., 446 U.S., at 12, 100 S.Ct., at 1467 (1980) (My emphasis).
Ordinarily litigants should be able to rely on the express action of the trial court creating a final and appealable judgment. See 6 Moore’s Federal Practice 1154.04[3-5], footnote 4. A trial judge is in a much better position than appellate judges to assess the desirability of a final judgment, whether for juridical concerns, equitable concerns, or both.
Even if there is a juridical possibility of appeal on related issues at a later date, the trial court’s discretion should be respected. As the United States Supreme Court carefully pointed out in Curtiss-Wright Corp., 446 U.S., at 9, footnote 2, 100 S.Ct., at 1465, footnote 9, some factors adverse to intermediate appeal “might perhaps be offset by a finding that an appellate resolution of the certified claims would facilitate a settlement of the remainder of the claims.” Rather than the “narrowing” of discretion accomplished by the majority opinion, the Supreme Court’s suggestion marks the wide discretion vested in a trial court by Rule 54(b).
I hope that the majority’s decision is merely another pothole in an important avenue for appellate review, and not a selective barricade creating a “highway to heaven” for unhappy defendants. Perhaps it is merely a petulant response to too many appeals with indifferent briefs and inadequate research. If so, I can subscribe to the sentiment, but I cannot rationalize the result for this case. Because I do not believe that this trial court’s certification under Rule 54(b) was an abuse of discretion, I respectfully dissent.3
. "Not all final judgments on individual claims should be immediately appealable, even if they are in some sense separable from the remaining unresolved claims. The function of the district court under the Rule is to act as a ‘dispatcher.’ Id., [Sears, Roebuck & Co. v. Mackey, 351 U.S.] at [427] 435, 76 S.Ct. [895] at 899 [100 L.Ed. 1297 (1956) ]. It is left to the sound judicial discretion of the district court to determine the 'appropriate time’ when each final decision in a multiple claims action is ready for appeal. Ibid. This discretion is to be exercised ‘in the interest of sound judicial administration.’ Id., at 437, 76 S.Ct., at 900.’’ Curtiss-Wright Corp. v. General Elec. Co., 446 U.S., at 8, 100 S.Ct., at 1465.
. Union State Bank v. Woell, supra, ruled that a 54(b) certification, of a Bank’s judgment on a contractual claim was improvidently granted where the defendant’s counterclaim for torts of fraud, duress and coercion was still pending because the “claims ... and counterclaim arose from the same series of transactions and occurrences, are logically related legally and factually, and are closely intertwined." That mechanistic treatment of Rule 54(b) is surely questionable.
“The mere presence of [“nonfrivolous counterclaims”], however, does not render a Rule 54(b) certification inappropriate. If it did, Rule 54(b) would lose much of its utility. In Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445, 76 S.Ct. 904, 100 L.Ed. 1311 (1956), this Court explained that counterclaims, whether compulsory or permissive, present no special problems for Rule 54(b) determinations; counterclaims are not to be evaluated differently from other claims." Curtiss-Wright Corp. v. General Elec. Co., 446 U.S., at 9, 100 S.Ct., at 1465.
Strangely, the court in Woell placed the burden of persuasion about Rule 54(b) factors on the party who sought the judgment, not the party who sought the appeal. “The Bank failed to meet that burden.” 357 N.W.2d, at 239. At least, today’s majority decision does not continue that mistake, even though it does give the Woell opinion more credence them it merits.
. This court might better "narrow" the allowance of Rule 54(b) certifications on truly non-final determinations such as an order changing venue, Jerry Harmon Motors v. First National Bank & Trust, 436 N.W.2d 240, 242-243 (N.D.1989) (Meschke, concurring) and an order granting a new trial, Grenz v. Kelsch, 436 N.W.2d 552, 557 (N.D.1989) (Meschke, concurring). Although, thus far, this court has been unwilling to limit the use of Rule 54(b) on such non-final matters, it is plain that Rule 54(b) was never intended to make truly interlocutory orders appealable. 6 Moore’s Federal Practice ¶ 54.30[1]. A trial court cannot, “in the exercise of its discretion, treat as ‘final’ that which is not 'finar....” Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 76 S.Ct. 895, 900, 100 L.Ed. 1297 (1956).