Cattell v. Deeks

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 7, 2025
• Docket: 24-2857
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 7 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: THOMAS BRYON CATTELL No. 24-2857 D.C. No. Debtor 22-1214 _______________________________

MEMORANDUM* THOMAS BRYON CATTELL,

Appellant.

v.

VICTORIA DEEKS; CONNOR DEEKS; GARRETT WELCH,

Appellees.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Gary A. Spraker, William J. Lafferty, III, and Julia W. Brand, Bankruptcy Judges, Presiding

Argued and Submitted April 1, 2025 Portland, Oregon

Before: BYBEE, LEE, and FORREST, Circuit Judges. Concurrence by Judge LEE.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Thomas Cattell’s consolidated adversary proceeding appeared ready to go to

trial in bankruptcy court in December 2021. See In re Thomas Bryon Cattell, No.

19-03123-dwh (Bankr. D. Or.). But in the months leading up to trial, Cattell’s trial

counsel withdrew after failing to file a response to a summary judgment motion.

Cattell told the bankruptcy court that he contacted at least four other attorneys, each

of whom declined to represent him because they were “too busy.” Finally, eleven

days before trial, Cattell secured new counsel in Jesse London, who made a special

appearance on November 26, 2021, to request the trial be continued for two to three

months so that he could get up to speed.

London explained that he agreed to represent Cattell at trial. But due to prior

commitments, including a planned vacation and several other trials in December and

January, his representation of Cattell was “necessarily contingent” on having a

continuance from December 7, 2021, to February or early March. Otherwise, Cattell

would have to proceed to trial without an attorney.

In a puzzling decision, the bankruptcy court denied the continuance.

Weighing the factors in United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir. 1985),

the court ruled that the inconvenience to defendants of having to re-serve witnesses

and re-schedule time off work outweighed the benefit of Cattell having a lawyer to

try the case, even though the trial was scheduled for non-consecutive days and over

Zoom. The court also determined that Cattell did not exercise diligence by

2 24-2857 contacting four attorneys over four months. Predictably, Cattell had trouble

presenting his case pro se, and the trial took nearly three times longer than expected.

Following an unsuccessful appeal to the Bankruptcy Appellate Panel (BAP),

Cattell challenges the bankruptcy court’s decision to deny the continuance. Cattell

also challenges a number of other procedural and substantive rulings. We assume

the parties’ familiarity with the remaining facts and do not recite them here. We

have jurisdiction under 28 U.S.C. § 158(d), and we affirm.

* * *

1. Motion to Continue. We review the decision to grant or deny a continuance

for “clear abuse of . . . discretion,” applying the factors outlined in Flynt. Bearchild

v. Cobban, 947 F.3d 1130, 1138 (9th Cir. 2020). Although we may assign any

weight to these factors, “prejudice resulting from the denial . . . is required before

error will be assigned to the failure to grant a continuance.” Id.

Cattell falls short of showing prejudice. He has not pointed to any evidence

that he was not able to present. See United States v. 2.61 Acres of Land, 791 F.2d

666, 671 (9th Cir. 1985). And having to proceed pro se in a civil trial is not

inherently prejudicial. United States v. 30.64 Acres of Land, 795 F.2d 796, 801 (9th

Cir. 1986); see also Ungar v. Sarafite, 376 U.S. 575 (1964). While Cattell’s

presentation may have been affected, his manner and credibility were not of

particular importance in this trial to the bankruptcy court. Cf. United States v.

3 24-2857 Kloehn, 620 F.3d 1122, 1129 (9th Cir. 2010); United States v. Mejia, 69 F.3d 309,

316 (9th Cir. 1995). Indeed, bankruptcy trials tend to be more informal, and the

court gave Cattell plenty of accommodation in the length and format of his

presentation, finding that he ultimately “had an ability to say the things [he] wanted

to say.” Therefore, though we are sympathetic to the difficulties Cattell faced at

trial, we decline to find a clear abuse of the court’s broad discretion to deny the

continuance. See Flynt, 756 F.2d at 1358.

2. Financial Abuse. Cattell argues for relief under Oregon Revised Statutes

(ORS) § 124.100(2), which prohibits financial abuse of a vulnerable person.1 But

Cattell is not able to establish the required elements of this claim. First, he is not a

“vulnerable person” as defined by § 124.100(1)(e): Cattell is not “financially

incapable” because he has been able to own businesses, buy properties, and use

financial accounting software to produce financial statements in the form of

spreadsheets, and he is not a “person with a disability” as defined by § 124.100(1)(d)

because he has not shown an inability to perform “substantially all the ordinary

duties of occupations” that a neurotypical person with similar training and

experience could perform. Second, Cattell has not established that he suffered

1 “A vulnerable person who suffers injury, damage or death by reason of physical abuse or financial abuse may bring an action against any person who has caused the physical or financial abuse or who has permitted another person to engage in physical or financial abuse.” ORS § 124.100(2).

4 24-2857 “financial abuse” under ORS § 124.110(1) sufficient to overcome the bankruptcy

court’s finding that no such abuse occurred. See In re Cattell, 2022 WL 6797579,

at *9 (Bankr. D. Or. Oct. 11, 2022).

3. Fraudulent Transfer. Cattell argues that the bankruptcy court should have

analyzed his fraudulent transfer claim under the partnership avoidance powers in

ORS § 67.095(2). But this claim—which hinges on the allegation that Garrett Welch

knew the Skyliner property “was partnership property and that Deeks lacked

authority to bind the partnership”—is nowhere to be found in Cattell’s Second

Amended Complaint. The complaint alleges that Welch “had knowledge that his

title might be affected by the Cattel [sic] and Deeks dispute.” It does not mention

knowledge of the partnership or of Deeks’ authority to bind it. Therefore, the

complaint does not contain “a short and plain statement of the claim showing that

the pleader is entitled to relief,” and it is thus insufficient. Bautista v. Los Angeles

County, 216 F.3d 837, 840 (9th Cir. 2000) (quoting FED. R. CIV. P. 8(a)). As for the

question of trial by consent, the evidence Cattell adduced at trial both was “also

relevant to the other issues at trial” and “only inferentially supports [his] unpleaded

claim,” In re Acequia, Inc., 34 F.3d 800, 814 (9th Cir. 1994); Campbell v. Bd. of Trs.

of Leland Stanford Junior Univ., 817 F.2d 499, 506 (9th Cir. 1987), rendering

amendment under Federal Rule of Civil Procedure 15(b) unavailable.

4. Remaining Motions. Cattell alleges error with respect to other motions that

5 24-2857 he made before or during the trial. Each challenge is unavailing.

For his oral motion for a new trial on January 24, 2022, Cattell has not shown

a “manifest error of law, manifest error of fact, [or] newly discovered evidence” as

required under Federal Rule of Civil Procedure 59(a)(2). Brown v. Wright, 588 F.2d

708, 710 (9th Cir. 1978). As to the motion for a protective order on February 8,

2022, Cattell admits that any potential error was harmless. See Boyd v. City &

County of San Francisco, 576 F.3d 938, 949 (9th Cir. 2009). As to the motion for a

stay pending appeal on December 6, 2021, this issue is moot. And for Cattell’s

remaining challenges to matters of discovery, evidence, and case management, none

of these decisions by the bankruptcy court amounted to an abuse of discretion. See

City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1065 (9th Cir. 2017).

AFFIRMED.

6 24-2857 Cattell v. Deeks et al., Case No. 24-2857 FILED LEE, Circuit Judge, concurring: MAY 7 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS After his attorney failed to respond to a summary judgment motion and then

withdrew from the case only a few months from trial, Thomas Cattell repeatedly

searched for new trial counsel. He finally found one, but his new lawyer said he

needed two months to prepare for trial and tend to his other commitments. As the

panel put it in the memorandum disposition, the bankruptcy court’s refusal to grant

this continuance—and thus force Cattell to try his case pro se—was “puzzling.” But

it is more than that—it is troubling. We as judges need to do better not to act

arbitrarily, even if Cattell ultimately did not suffer sufficient prejudice to merit a

reversal here.

The U.S. legal system is the envy of the world. But it is mystifying for most

people. And for obvious reasons: Our legal system has esoteric rules, technical

terms, and legions of requirements. These rules are both a strength and a weakness

of our system. They help establish the rule of law, but they can also ensnare

inexperienced parties. While the Constitution does not guarantee a right to counsel

for civil litigants, courts should be mindful that lay parties benefit from having

lawyers—especially for trials.

Yet for inexplicable reasons, the bankruptcy judge refused to grant a mere

two-month continuance in this case. Three of the four Flynt factors favored

1 continuing the trial. United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir. 1985).

Cattell was fairly diligent in trying to get specialized counsel after his prior counsel

withdrew after apparently committing malpractice. See United States v. Pope, 841

F.2d 954, 956 (9th Cir. 1988). Cattell’s new counsel reasonably asked that the trial

date be continued to February 2022 so he could get up to speed (and, in any event,

the trial set for December would have likely extended into the new year, given the

holiday season). Importantly, there was no hint of gamesmanship on Cattell’s part—

he was a hapless victim of his prior counsel’s negligence. The alternative to a two-

month continuance was to deprive Cattell of an attorney for a trial.

Somehow, the bankruptcy court concluded that all these factors were

outweighed by the inconvenience to the opposing parties. Victoria Deeks stated that

she would have “difficulties . . . scheduling similar time off” work as a nurse, and

Garrett Welch would have to re-serve his witnesses, if any. But these issues are not

“substantial.” Any continuance is inconvenient to a degree: A witness has to re-

schedule and show up, but that is just a part of litigation. It matters even less when

the trial is on Zoom. The bankruptcy court could tell from the hearing on the motion

to continue that explaining the procedures of trial to Cattell and giving him extra

leeway to present was likely to incur more time than just delaying the trial—which

is exactly what happened.

As a result of the denial, Cattell struggled mightily to present his case. He

2 repeatedly brought evidence into his arguments and arguments into his presentation

of evidence. He claimed to have “noise” or “white noise” in his head. He was

emotional when talking about Connor and Victoria Deeks—key players in the trial.

He asked for an attorney at least ten times. At one point, Cattell called a statement

by the Welches “fruitcakes. I know that’s not a legal term[, but] I don’t know what

to say.” While Cattell fails to show actual prejudice, it is clear that he had trouble

trying this case.

An old adage says that someone who represents himself has a fool for a client.

Trying a case pro se can be like walking a labyrinth without a map. The path for

Cattell was legally open, but his trial was fraught with traps and rules that led him

astray. Ultimately, the bankruptcy court’s baffling refusal to grant the continuance

may not have been the reason Cattell lost. But if courts act arbitrarily, people lose

trust in the rule of law—and our judicial system is the loser.