concurring:
The district court’s order denying the motion for Rule 11 sanctions stated that “This case was dismissed by stipulation of the parties ‘So ordered’ by the Court. As a result thereof I have no jurisdiction to grant the relief sought herein.” I agree with the majority’s determination that “fundamental fairness mandates the denial of Abbott’s motion under the circumstances revealed here.” To the extent that the language of the majority opinion may lead some to believe that there is no jurisdiction to consider a Rule 11 motion after a stipulated dismissal under Fed.R.Civ.P. 41(a)(1)(ii), however, I disagree.
The fundamental fairness or unfairness of the circumstances surrounding the making of a motion is not a guidepost to whether subject matter jurisdiction exists, but is an issue to be considered in a decision on the merits. I read the majority opinion as a decision on the merits and I concur in the result with the understanding that such a determination presupposes the existence of jurisdiction.