UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-1413

FREDERICK FRAME,

Plaintiff - Appellant,

versus

RYANSTONE COAL, LLC,

Defendant - Appellee.

Appeal from the United States District Court for the Northern

District of West Virginia, at Elkins. Robert E. Maxwell, Senior

District Judge. (CA-03-7-2-REM)

Submitted: November 21, 2005 Decided: December 28, 2005

Before WILKINS, Chief Judge, and LUTTIG and WILLIAMS, Circuit

Judges.

Affirmed by unpublished per curiam opinion.

Frank P. Bush, Jr., FRANK P. BUSH & ASSOC., Elkins, West Virginia,

for Appellant. Bryan R. Cokeley, Russell D. Jessee, STEPTOE &

JOHNSON, P.L.L.C., Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Frederick Frame appeals an order granting summary judgment

against him in an action that he brought on behalf of himself and

all others similarly situated, against Ryanstone Coal, LLC

(Ryanstone). Because Frame does not sufficiently challenge the

bases for the decision against him, we affirm.

I.

Frame was employed by Island Fork Construction, LLC (Island

Fork), which provided Ryanstone with labor to operate the Ryanstone

Coal Mine in Barbour County, West Virginia. Frame worked at the

mine for approximately 10 months before losing his job as the

result of a mass layoff on May 7, 2002. 

Following his layoff, Frame initiated the present action. His

complaint alleged that Ryanstone violated the Worker Adjustment and

Retraining Notification (WARN) Act, see 29 U.S.C.A. §§ 2101—2109

(West 1999 & Supp. 2005), by not providing him with 60 days notice

of a mass layoff. Frame also claimed that Ryanstone violated the

West Virginia Wage Payment and Collection Act, see W. Va. Code Ann.

§§ 21-5-1 to 21-5-18 (LexisNexis 2002 & Supp. 2005), by failing to

pay him certain employee benefits on the first regular payday

following his layoff. Frame sought money damages, as well as

attorney’s fees and costs.
*Rule 56(f) allows a district court to deny a motion for

summary judgment if affidavits explain why the party opposing the

motion cannot present by affidavit facts essential to its

opposition to the motion.

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Ryanstone moved to dismiss the complaint, attaching to its

motion an affidavit and an unexecuted copy of its labor agreement

with Island Fork. Because the attachments could not be considered

in regard to a motion to dismiss, the district court treated

Ryanstone’s motion as one for summary judgment. Frame objected,

maintaining that the conversion was premature because he had not

been given the opportunity to conduct discovery. Since Frame

neither filed an affidavit pursuant to Federal Rule of Civil

Procedure 56(f)* nor explained what issue he hoped such discovery

would affect, the district court overruled Frame’s objection and

proceeded to rule on the merits of the motion. Concluding that

Frame had failed to create a genuine issue of material fact on

either of his claims, the district court granted summary judgment

against him.

II.

Frame first contends that the district court abused its

discretion in ruling on the merits of Ryanstone’s summary judgment

motion without allowing Frame to conduct discovery. In this

regard, however, Frame argues only that he “repeatedly stated in

his response brief and on the record at the hearing on Summary
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Judgment that further discovery was required to address the issue

raised outside the pleadings.” Br. of Appellant at 16-17. Frame

does not identify any flaw in the analysis offered by the district

court as to why Frame’s general statement, not presented in

affidavit form, that he needed discovery was not sufficient to

warrant postponing its ruling on the merits of the summary judgment

motion. For this reason, Frame has waived review of this issue.

See Fed. R. App. P. 28(a)(9)(A) (providing that the appellant’s

brief must contain “appellant’s contentions and the reasons for

them, with citations to the authorities and parts of the record on

which the appellant relies”); 11126 Baltimore Blvd., Inc. v. Prince

George’s County, 58 F.3d 988, 993 n.7 (4th Cir. 1995) (en banc)

(declining to consider arguments for failure to comply with Rule

28).

Frame also fails to sufficiently challenge the rulings of the

district court on the merits of his claims. With regard to his

WARN Act claim, the district court ruled that Frame had failed to

create a genuine issue of material fact on three issues, any of

which was sufficient by itself to defeat the claim: (1) Ryanstone

was not Frame’s “employer,” as that term is used in the WARN Act,

29 U.S.C.A. § 2101(a)(1); (2) Frame was not an “affected

employee[],” as that term is used in the Act, id. § 2101(a)(5); and

(3) the business circumstances exception to the WARN Act absolved

Ryanstone of liability, see id. § 2102(b)(2)(A). In his initial
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brief, Frame completely fails to address either of the latter two

issues and therefore has waived the right to review of them. See

11126 Baltimore Blvd., 58 F.3d at 993 n.7.

Further, the district court ruled against Frame on his state

law claim for three reasons, each of which was sufficient by itself

to support the judgment: (1) Frame was not Ryanstone’s “employee”

within the meaning of the West Virginia Act, W. Va. Code Ann. § 21-

5-1(b); (2) Ryanstone was not engaged in a joint venture with

Frame’s employer, Island Fork, such that Ryanstone could be liable

for Island Fork’s violations; and (3) Frame was not entitled to the

fringe benefits that he sought to recover. Because Frame fails to

challenge any of these reasons in his initial brief, he has waived

the right to review of these issues as well. See 11126 Baltimore

Blvd., 58 F.3d at 993 n.7.

III.

In sum, for the foregoing reasons, we affirm the order

granting summary judgment to Ryanstone. Because Frame has waived

each issue that is the subject of this appeal, we conclude that

oral argument would not assist the decisional process.

AFFIRMED