(dissenting):
The majority permits the plaintiffs, who have been unable after two attempts to state a valid claim for provable damages, to file a third amended complaint which would state a new claim on a different theory with respect to a different period of time (i. e., 1971-72 instead of April-May 1973), based solely on a speculative argument advanced by plaintiffs’ counsel long after the second amended complaint had been filed. With due respect, I believe that the inordinately excessive measures taken to rescue a patently meritless complaint from dismissal are both unwise and impermissible.
The second amended complaint states two claims, one based on a transfer of margin accounts to other brokers, and the other against the New York Stock Exchange for failure to supervise Weis. As the complaint repeatedly indicates by referring to the period of April-May 1973, both claims are based upon actions taken after Weis’ financial difficulties came to light in April 1973. Both claims, as the majority seems to imply, must be dismissed because of failure to allege or show any provable damages proximately resulting to the plaintiffs from the transfer or from the lack of supervision of Weis by the New York Stock Exchange.
Apparently recognizing the insufficiency of the second amended complaint, plaintiffs’ counsel has now suggested a new theory, namely, that if the New York Stock Exchange had properly supervised Weis at an earlier point in time, i. e., during 1971 and 1972, the liquidation of Weis might have been avoided. Plaintiffs make no claim, however, that they did not have sufficient knowledge of the facts regarding the earlier period to raise this new theory in their second amended complaint. They should not now be allowed to take advantage of the Federal Rules’ policy of liberal amendment of pleadings to remedy their own apparent lack of diligence. Cf. Freeman v. Continental Gin Co., 381 F.2d 459, 468—70 (5th Cir. 1967); Vine v. Beneficial Finance Co., 374 F.2d 627, 636-37 (2d Cir.), cert. denied, 389 U.S. 970, 88 S.Ct. 463, 19 L.Ed.2d 460 (1967). Moreover, in the absence of some supporting facts, it seems to me that at this late date we should not remand for the pur*160pose of permitting plaintiffs to sally forth with this entirely new and speculative theory. There being no new allegations of facts indicating that any damages were proximately caused to plaintiffs under the latest theory, i. e., failure of the New York Stock Exchange to supervise Weis during the earlier period, I would affirm the district court’s decision.