OPINION OF THE COURT
This is an appeal from a final judgment of the United States District Court for the Western District of Pennsylvania (“the district court”)
I.
This case arises out of a fire that destroyed plaintiffs’ home in Beaver Falls, Pennsylvania on October 19, 1981. According to plaintiffs, they had vacated the house, which was up for sale, on October 11, 1981, and they first learned of the fire on October 22 upon their arrival in California, where they had gone to “start a new life”. At the time of the fire the house was insured by State Farm under a homeowner’s policy purchased in 1979.
In November of 1981 plaintiffs filed a claim under the policy. On August 31, 1982 State Farm notified plaintiffs that it denied liability for various reasons, including its belief that the fire was incendiary in origin and that it was caused by the insureds. Plaintiffs filed suit in the Superior Court of California on December 2, 1982.
*28 The complaint stated three causes of action sounding in tort against State Farm: breach of duty of fair dealing and good faith; breach of fiduciary duties; and breach of statutory duties (unfair insurance practices) under Cabins.Code § 790.03 (West Supp.1984). The statutory count also named as defendants “Does 1 through 10”, and identified them as “employees and agents of [State Farm] who were responsible for processing plaintiffs’ claim for benefits under the fire insurance policy which is the subject matter of this action.” The Does were alleged to be citizens of California. On February 9, 1983, State Farm removed the case to federal district court in Los Angeles on a petition alleging diversity of citizenship. Plaintiffs’ first motion to remand for lack of diversity was denied.
Once in federal court, State Farm promptly moved under 28 U.S.C. § 1404 (1982) for transfer to the Western District of Pennsylvania, contending that all relevant documents and all witnesses, except the plaintiffs, were there. The motion for transfer was initially denied. Plaintiffs then moved to amend their complaint to name as defendants a State Farm employee and an attorney who allegedly participated in the investigation and denial of their claim. Both were alleged to be California citizens, and plaintiffs accordingly moved to remand because the amendment would destroy diversity.
Without ruling on plaintiffs’ motions to amend and to remand, the district court in Los Angeles, on its own motion, reconsidered its earlier ruling and transferred the case to the Western District of Pennsylvania. Plaintiffs petitioned the United States Court of Appeals for the Ninth Circuit for a writ of mandamus or prohibition to prevent the transfer. A two-judge panel denied relief, stating that they doubted that there was jurisdiction in the Ninth Circuit once the files had been physically transferred, and noting in the alternative that the transfer was not “clearly erroneous”. 1 Plaintiffs then moved the district court for transfer back to the Central District of California, or, alternatively, remand to the California state court, again alleging lack of diversity. Because it felt that this would entail reviewing the decision of another district court, the court below denied the motion.
State Farm then filed a motion to dismiss, relying on the 12-month limitation of suit provision in the insurance policy. Plaintiffs contended that under California law this provision would not bar their suit. The district court, however, found that Pennsylvania law governed, and that plaintiffs’ claims were time-barred. The district court also held that even if California law applied, the suit would be time-barred. In this appeal plaintiffs argue (1) that there is no federal subject matter jurisdiction over this case, (2) that the district court in Los Angeles abused its discretion in failing to rule on their motions to amend the complaint and to remand, and in transferring the case to Pennsylvania, 2 and (3) that the district court here erred in applying Pennsylvania law and in finding their claims time-barred.
*29 II.
The threshold question before us is whether there is federal subject matter jurisdiction over this case. State Farm contends that federal jurisdiction exists by virtue of the parties’ complete diversity of citizenship, and that the case was properly removed to federal court pursuant to 28 U.S.C. § 1441. The plaintiffs are alleged to be citizens of California, and State Farm is alleged to be incorporated and have its principal place of business in Illinois. We must decide what effect, if any, is to be given the joinder of ten fictitiously named “Doe” defendants, all alleged to be citizens of California. This appears to be a question of first impression for this court.
We are mindful of a number of general principles that should guide the exercise of the federal courts’ removal jurisdiction. Because lack of jurisdiction would make any decree in the case void and the continuation of the litigation in federal court futile, the removal statute should be strictly construed and all doubts should be resolved in favor of remand. 14 C. Wright, A. Miller & E. Cooper,
Federal Practice and Procedure
§ 3642, at 149 (2d ed. 1985) [hereinafter cited as
Federal Practice]; Wood v. Home Insurance Company,
13B Federal Practice § 3606, at 409 (2d ed. 1984).
Pullman Company v. Jenkins, supra,
establishes that the presence of fictitiously named defendants in a state court complaint may, in certain circumstances, defeat diversity jurisdiction upon a petition for removal.
3
In that case the Pullman Company and a Pullman porter designated “John Doe One” were charged with negligence in permitting a disorderly passenger to board a train. As here, the plaintiffs were citizens of California and the defendant company a citizen and resident of Illinois. The complaint contained no allegation as to the unnamed porter’s citizenship. Nonetheless, the Supreme Court held that diversity of citizenship was not present, and that remand to state court was required. The Court stressed that the Doe defendant’s “relation to the Pullman Company and his negligence as its servant were fully alleged” and that therefore the “Company was bound to show that he was a non-resident in order to justify removal.”
A. Sufficiency of the Allegations
In determining whether allegations against a Doe defendant are sufficient on their face to destroy diversity, courts have looked for “some clue who the Doe might be, how the Doe might fit into the charging allegations, or how the Doe might relate to other parties.”
Hartwell Corporation v. Boeing Company,
The clearest cases for disregarding Doe defendants are those in which the complaint merely includes Does in the caption, without any charging allegations. Thus, in
Chism v. National Heritage Life Insurance Company,
The complaint, in a single opening paragraph, merely refers to “DOES I-X” without any charging allegations against them. Nowhere does it show their relationship to any claim of plaintiff. The complaint does not allege that Chism was injured by any act of any Doe. It fails even to suggest any relationship between the Does and plaintiff or any between the Does and defendant National. All charging allegations refer only to defendant National in the singular. There is not a single charging allegation against any Doe defendant.
The Doe defendants cannot destroy diversity in this case because the complaint asserts no claim of any kind against them or any of them.
These cases may be compared with the many others where Doe defendants have been held to destroy diversity. For example,
Pecherski v. General Motors Corporation,
[t]he complaint identified several Does as “residents and citizens of the State of California [who] made representations and promises to plaintiff during the sale of the contract of insurance.” The complaint also included charges identifying the Does as participants “in processing plaintiff’s claim for benefits.”
In light of these precedents, we have no trouble 'in concluding that the Doe allegations here are sufficient on their face to defeat diversity jurisdiction. The complaint specifically identifies the “Does 1 through 10” as “employees and agents of [State Farm] who were responsible for processing plaintiffs’ claim for beneits under the fire insurance policy which is the subject of this action.” It goes on to allege that the Does committed a variety of unfair *32 insurance practices specifically enumerated in Cal.Ins.Code § 790.03. 7 With this degree of specificity in the complaint, we cannot say that the Doe defendants are mere “phantoms” who “live not and are accused of nothing.” 8
B. Fraudulent Joinder
In this phase of our analysis we must look beyond the allegations of plaintiffs’ complaint. “Courts have found joinder to be fraudulent where there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendant or seek a joint judgment.”
Goldberg v. CPC International,
Plaintiffs’ conduct in the instant case is consistent with an intention to actually proceed against at least some Doe defendants. Plaintiffs sought, through interrogatories, to identify those State Farm employees who were involved in the processing of their claim. Their motion to remand was accompanied by a motion to amend the complaint to substitute identified Doe defendants. To the extent that a subjective intent to proceed against Doe defendants is necessary to prevent a finding of fraudulent joinder, we find that plaintiffs pass this test.
We are somewhat more troubled when we turn to the objective criteria that there be some reasonable basis in fact and some colorable legal ground supporting a claim against the Doe defendants. There is substantial question whether California Insurance Code § 790.03 gives plaintiffs a cause of action against employees and agents of an insurance company. Nonetheless, enough recent authority supporting such a cause of action exists 9 to constrain us from holding that there is no “colorable” legal basis for the John Doe claims. To inquire any further into the *33 legal merits would be inappropriate in this preliminary jurisdictional determination. 10
State Farm contends, with some force, that there is no reasonable basis in fact for the Doe allegations. Though the Does are alleged to be California citizens, State Farm asserts — and the sparse record before us so indicates — that plaintiffs’ claim was processed 11 by State Farm’s Pennsylvania office. Plaintiffs’ motion to substitute California citizens Judy Johnson and Joanna McMahon as defendants does little to assuage our concerns. It appears that Johnson — an attorney for State Farm — merely took plaintiffs’ depositions. The record does not indicate what, if any, role McMahon — a claims adjuster — might have played. However, we feel that the removal, transfer, and dismissal on the pleadings occurred in such rapid succession that plaintiffs have not, in all probability, had a reasonable opportunity to complete discovery and develop a record. It would be premature for a court, especially an appellate court, to declare at this stage that there is no basis in fact for the Doe allegations. 12
We believe that the proper disposition of this case is for the district court to remand it to the Superior Court of Los Angeles County from which it originated.
13
This shall be done without prejudice to State Farm’s right to remove to federal court at some later date should it become apparent that diversity jurisdiction exists, and all other requirements of 28 U.S.C. §§ 1441 and 1446 are met — including the requirement that the petition for removal be filed within 30 days “after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b). The 30-day period for filing a petition for removal has been held to commence when the Does are no longer part of the action and therefore can no longer destroy the required diversity.
See Preaseau v. Prudential Insurance Company,
We are cognizant of the fact that this disposition may well result in yet another removal, transfer to the Western Dis *34 trict of Pennsylvania, dismissal, and appeal to this court, thus only delaying — perhaps by years — our consideration of the merits. Nonetheless, a defect in subject matter jurisdiction can never be deemed harmless error, and perhaps time lost now will later spare the party that ultimately prevails the pain and annoyance of collateral attacks on the final judgment. Moreover, we believe that federal-state comity is well-served when federal courts can give deference to state rules of practice and pleading without unduly impinging on federally protected procedural rights. This, we believe, is just such a case.
CONCLUSION
For the foregoing reasons, we will vacate the judgment of the district court and remand with instructions that this case be further remanded to the Superior Court of California, County of Los Angeles.
Notes
. The question of removal jurisdiction was not raised in the petition for mandamus or prohibition. Therefore, we do not believe that this alternative holding implies a finding by the Ninth Circuit that federal subject matter jurisdiction exists.
. Plaintiffs do not offer any authority for the proposition that we may review a determination by a district court outside of our circuit that transfer to a district court within this circuit would be in the interests of justice. In view of our disposition of the subject matter jurisdiction issue, we find it unnecessary to address this problem of extraterritoriality.
Cf. Hoffman v. Blaski,
. Thus, fictitiously named defendants are not necessarily "nominal” parties.
See Grosso v. Butte Electric Railway Co.,
. See, e.g., 14 Federal Practice § 3642 (2d ed. 1985); Comment, John Doe, Where Are You? The Effects of Fictitious Defendants on Removal Jurisdiction in Diversity Cases, 34 Ala.L.Rev. 99 (1983); Annot., 8 A.L.R.Fed. 675, § 6 (1971).
. The courts of the Ninth Circuit have been especially prolific, the pleading of fictitiously named defendants having taken on an almost ritualistic aspect in California.
See, e.g., Lopez v. General Motors Corp.,
. Saying too much can, however, be as fatal as saying too little. In
Hemmeter Center Co. v. Globe Illumination Co.,
Defendants JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS 1-10, DOE CORPORATIONS 1-10, ROE "NON-PROFIT” CORPORATIONS 1-10, A ROE GOVERNMENTAL ENTITIES 1-10 are sued herein under fictitious names for the reason that their true names and identities are presently unknown to plaintiffs except that they are connected in some manner with the named defendants and/or were the agents, servants, employees, employers, representatives, coventurers, associates, vendors, vendees, suppliers, manufacturers, subcontractors or contractors and/or owners, lessees, assignees, licensees, designers or engineers of the named defendants and/or were in some manner presently unknown to plaintiffs engaged in the activities alleged herein and/or were in some manner responsible for the losses or damages to plaintiffs; and/or manufactured and/or designed and/or placed on the market a product which was defective, which defect was a proximate cause of losses or damages to plaintiffs; and/or installed and/or inspected and/or maintained and/or repaired and/or controlled some object or product in a negligent manner, which negligence was a proximate cause of losses or damages to plaintiffs; and/or conducted some activity in a negligent manner, which negligent conduct was a proximate cause of losses or damages to plaintiffs and/or was in some manner related to the named defendants; and plaintiffs pray leave to amend this complaint to insert therein their true names, identities, capacities, activities and/or responsibilities when the same are ascertained.
. At oral argument, counsel for plaintiffs asserted that the gravamen of the unfair insurance practice count is that State Farm and the Does were dilatory in processing the claim.
. We must also reject State Farm’s contention that the Does should be disregarded because they are not "indispensable” parties. "Even though a party is merely proper, as, for example, a joint tortfeasor, if in fact he has been joined, that party's citizenship must be considered.” 13B Federal Practice § 3606, at 413 (2d ed. 1984).
.
See Reasoner v. Aetna Life Insurance Co.,
. In a related vein, we must also reject State Farm’s contention that because under Pennsylvania law — which they contend governs this controversy — no such cause of action is recognized (a fact plaintiffs concede), there is no colorable legal basis for the Doe claims. A federal court cannot engage in a choice of law analysis where diversity jurisdiction is not first established. Again, the result might be. different were there no colorable basis for the plaintiffs’ suggested choice of law, but such is not the case here.
. At oral argument counsel for plaintiffs conceded that there was no basis in fact for the additional allegation, contained in the complaint’s introductory paragraph, that some of the Does were involved in the sale of the policy.
. The district court in Los Angeles did indicate that were it to have ruled on plaintiffs’ motion to amend the complaint, it would have denied it. State Farm argues that this amounts to a determination that there was no factual basis for the claims against Johnson and McMahon. Unfortunately, the judge did not make any findings and did not give his reasoning.
. We have considered the other theoretical options available in the unusual procedural posture in which we find this case, such as remanding directly to the California state court, or routing our mandate through the federal district court in Los Angeles. This disposition, however, will best facilitate the physical transfer of the record without opening up the Pandora’s box of extraterritoriality.