The opinion of the court was delivered by: TROUTMAN
A brief statement of the procedural background is pertinent. The original complaint was filed on June 2, 1976, and shortly thereafter, without leave of Court
on June 21, 1976, an amended complaint was docketed and served on the defendants. Thereafter, defendants moved to dismiss under Fed. R.Civ.P. 12(b), challenging the sufficiency of the allegations and asserting lack of subject matter jurisdiction. Plaintiff responded by filing a motion for leave to file a second amended complaint and to drop parties defendant
and a memorandum in opposition to the motions to dismiss.
Standard for Review of Amended Complaint
We have concluded that plaintiff's motion for leave to file a second amended complaint must be denied. As a general rule, the federal courts are extremely reluctant to deny leave to amend because of the spirit of liberality of the federal rules and the desire to have litigation proceed on the merits rather than on procedural technicalities reminiscent of a by-gone era. Fed. R.Civ.P. 15(a) expressly provides: "* * * leave shall be freely given when justice so requires." See e.g. Foman v. Davis, 371 U.S. 178, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); Rotolo v. Borough of Charleroi, 532 F.2d 920 (3d Cir. 1976). See also Fed. R. Civ. P. 1; 3 J. Moore, Federal Practice para. 15.08 (2d ed. 1974).
However, it has been held that leave to file an amended complaint must be denied where the proposed amended complaint does not cure the supposed deficiencies of the original or where allowance of the amended complaint would prove a fruitless act. Foman, supra; Dixon v. Pennsylvania Crime Commission, 67 F.R.D. 425 (M.D. Pa. 1975); Reaves v. Sielaff, 382 F. Supp. 472 (E.D.Pa. 1974); Hodnik v. Baltimore & Ohio Railroad, 54 F.R.D. 184 (W.D.Pa. 1972); Philadelphia Housing Authority v. American Radiator and Standard Corp., 309 F. Supp. 1057, 1064 (E.D.Pa. 1969); 3 J. Moore, Federal Practice para. 15.08 at 902-905. The standard for testing the sufficiency of the proposed amended complaint is the same as that under Fed. R. Civ.P. 12(b)(6). Dixon v. Pennsylvania Crime Commission, supra ; 3 J. Moore, supra. Using this standard as our polestar, we turn to the proposed amended complaint, accepting as true all well-pleaded factual averments and construing it with all inferences in favor of the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 23 L. Ed. 2d 404, 89 S. Ct. 1843 (1969); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).
Summary of the Allegations: Proposed Amended Complaint
"Take photos of any black males or females coming into bank who may look suspicious: [who]
(A) Come in to ask directions
(B) Exchange large bill for small money
(C) Come in for no apparent reason
NOTIFY LOCAL STATE ...