concurring.
I concur in the dismissal, but I add an observation about this case.
In appellant’s motion for an extension of time, counsel stated in part:
Plaintiff respectfully moves the court to extend the time for filing Notice of Appeal, a copy of which is attached hereto, to provide for timely filing of the Notice of Appeal on June 2, 1989. This motion is made pursuant to Rule 4(a)(5) Fed.R. of App.Pro. on the ground that the untimely filing is the result of excusable neglect and good cause.
In the alternative, plaintiff respectfully urges the court to grant hearing if the Court requires notice at a time and place to be designated by the above-named court.
Joint Appendix at A-78.
As the court’s opinion observes, Fed.R. App.P. 4(a)(5) contains the requirement that notice of motion for extension of time to appeal must be given to other parties *396when thirty days has elapsed after entry of judgment.
Good practice dictates that any motion, even one assumed to be ex parte, should be mailed to opposing counsel. If such a practice had been followed in this case, it might have saved the appeal. See Oda v. Transcon Lines Corp., 650 F.2d 231, 232 (10th Cir.1981) (per curiam).
I consider the issue a close one. Counsel here mistakenly relied on the district court’s ex parte grant of an extension of time to appeal. As has been observed, the rules do not give the district court the power to grant the extension after thirty days from judgment in the absence of notice to opposing parties. The appellee did not receive a notice of motion, but did receive a copy of the order for the extension of time to appeal, mailed from the office of the clerk of the district court.
I recognize that to allow the appeal, this court would need to bend the rule even further than the Tenth Circuit decision in Oda. That decision determined that if notice of the motion to extend time had been sent to opposing counsel within the thirty-day grace period, then jurisdiction over the motion would have vested in the district court, even though the district court had already entered an ex parte order granting the motion. Oda, 650 F.2d at 232. The court reasoned that because the district court lacked jurisdiction to enter an ex parte order, the original order was void ab initio and jurisdiction remained in the district court until a valid order was entered. Id. Thus, the appellate court dismissed the appeal for lack of jurisdiction and remanded the case to the district court to determine if the notice had been given and, if so, to rule on the pending motion to extend time. Id. at 233.
Here, the interests of justice will not justify a further bending of the appellate rules, cf. Campbell v. White, 721 F.2d 644, 647 (8th Cir.1983) (Bright, J., dissenting), to allow notice of the entry of an ex parte order to constitute notice of the motion; for were I to consider the merits, I believe an affirmance would be in order, giving due deference to the interpretation of Minnesota law by the Minnesota Federal District Judge, Donald D. Alsop.
Finally, this writer wholeheartedly approves the penultimate sentence in Judge Fagg’s opinion for this court that: “We now direct the [district court] clerks to instruct litigants to give notice of their motion to opposing parties.” See supra p. 395.