791 F.2d 934
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.PEPSI-COLA METROPOLITAN COMPANY d/b/a PEPSI-COLA BOTTLINGGROUP, Plaintiff-Appellee,v.LOCAL UNION NO. 332, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,CHAUFFEURS WAREHOUSEMEN & HELPERS OF AMERICA,Defendant-Appellant.
85-1935
United States Court of Appeals, Sixth Circuit.
4/18/86

APPEAL DISMISSED
E.D.Mich.
ORDER
BEFORE:  MERRITT, JONES and KRUPANSKY, Circuit Judges.


1
This matter is before the Court for consideration of appellee's motion to dismiss this appeal as premature.  Appellant has responded in opposition thereto.


2
The relevant dates are:  (1) opinion, order and judgment, October 23, 1985; (2) motion to reconsider, November 6, 1985; (3) notice of appeal, November 21, 1985, filed while time-tolling motion still pending; (4) order denying motion to reconsider, November 22, 1985; and (5) notice of appeal due December 23, 1985.  No new notice of appeal has been filed.


3
The motion to reconsider, timely served, Rule 6(a), Federal Rules of Civil Procedure (effective August 1, 1985), tolled the time for filing a notice of appeal.  Rules 4(a), 59(e), Federal Rules of Appellate Procedure, Myers v. Ace Hardware, 777 F.2d 2099 (6th Cir. 1985).  When the notice of appeal was filed, the time-tolling motion to reconsider was pending.  Rule 4(a)(4), Federal Rules of Appellate Procedure, provides that a notice of appeal filed while a time-tolling motion is pending is a nullity and a new notice of appeal must be filed within the prescribed time calculated from the entry of the order disposing of the motion.  Griggs v. Provident Discount Co., 459 U.S. 56 (1982).  It is ORDERED that the motion to dismiss be granted; this appeal is premature.

