parties to the Western District. There, the validity of the patent and the issue of infringement will be litigated in one lawsuit; all of the interested parties will be before the court; its judgment will be res judicata; and its jurisdiction is unquestioned. * * *'
However, the ability to implead is not the only factor to be considered. Indeed, in Fein, supra, where the case was transferred from Philadelphia to Camden to permit a third-party joinder, Judge Kirkpatrick said:
'* * * The plaintiff has cited a number of cases in which somewhat similar applications for transfer were denied. In each of them, although the matter of bringing in a third party defendant was one of the factors, the question of comparative convenience of the two forums was the controlling consideration.
'In the case at bar, the question of comparative convenience is nonexistent. The Camden courthouse is not over half an hour's ride from the Philadelphia courthouse.
'* * * there is nothing whatever by way of convenience of the parties to outweigh that consideration. * * *'
Here, there is not only substantial inconvenience, but substantial expense involved from plaintiff's standpoint. In addition, unlike a negligence case, plaintiff has paid in premiums for the protection it now seeks. Its right to this protection is, of course, resisted and defendant now says, in effect, not only that it contests plaintiff's claim, but that it wants to do it at increased expense to plaintiff and away from plaintiff's choice of forum. An unconditional transfer, we think, would not be fair and that which is not fair is not in the interest of justice.
In Hokanson v. Helene Curtis Industries, Inc., 1959, S.D.N.Y., 177 F.Supp. 701, at page 703, speaking of a motion to transfer, the Court said:
'* * * Two factors persuade me that the granting of the defendant's motion unconditionally would not be in the interest of justice. The first is the financial condition of the plaintiff. Her affidavit shows that she is a self-supporting person of modest income who has incurred expenses of over $ 3,600 in connection with her alleged injury. She has already employed attorneys in Nebraska and in New York to prosecute her claim. If defendant's motion is granted, plaintiff will have to employ additional attorneys to represent her in Illinois.
'* * * Justice requires that if the defendant's request be granted, it be on fair terms. * * *'
The court granted defendant's motion upon condition, inter alia, that defendant pay the fees of plaintiff's New York counsel.
What we have said indicates the substantial merits of both plaintiff's and defendant's positions. We think defendant should have the opportunity to implead, but not at plaintiff's expense. Therefore, defendant's motion will be granted but only on condition that (1) defendant make satisfactory arrangements for the payment to plaintiff of the amount by which the cost of trial in Florida will exceed the cost of trial here;
(2) the clerk of this court shall not transfer the file to the Southern District of Florida until plaintiff's attorneys certify in writing to the clerk that there has been compliance with (1) above; otherwise defendant's motion is denied.