Unpublished Dispositionwackenhut Corporation, Plaintiff-appellee, v. Guardsmark, Inc., Defendant/counterplaintiff-appellee,wackenhut Corporation, et al., Counter-defendants,daniel F. Guilbault, Counter-defendant-appellant, 856 F.2d 197 (6th Cir. 1988)

Before NATHANIEL R. JONES and RYAN, Circuit Judges, and THOMAS G. HULL, Chief District Judge^* 

ORDER

Counter-defendant Guilbault moves for a stay of a preliminary injunction entered July 28, 1988 which enforces a non-competition agreement between himself and his former employer, Guardsmark, Inc. He also moves for an expedited appeal. Guardsmark, Inc. has responded in opposition to the motion. Guilbault did not seek a stay of the preliminary injunction from the district court in the first instance. However, pending before the district court is a motion to modify the injunction as to Guilbault only. A hearing on the motion is scheduled for August 30, 1988.

Because the motion to modify was filed within ten days of entry of the preliminary injunction, we conclude that it tolls appeal time until entry of the order disposing of the motion. See Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1418-19 n. 4, 1420-21; Godinez v. Lane, 733 F.2d 1250, 1254 (7th Cir. 1984). Accordingly,

It is ORDERED that the appeal is dismissed sua sponte for lack of jurisdiction and the motion for expedited appeal and stay of preliminary injunction pending appeal is dismissed as moot.