                                                                           FILED
                            NOT FOR PUBLICATION                             APR 20 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MICHAEL S. HENRY and DOREEN H.                   No. 09-15152
LEE,
                                                 D.C. No. 2:08-CV-02029-JAM-
              Plaintiffs - Appellants,           DAD

  v.
                                                 MEMORANDUM *
HOMECOMINGS FINANCIAL; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                             Submitted April 5, 2010 **


Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.

       Michael S. Henry and Doreen H. Lee appeal pro se from the district court’s

judgment dismissing with prejudice their action against various defendants for

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
alleged constitutional violations in auctioning their home through foreclosure

proceedings. Appellants also challenge the order denying their request for

consolidation with another action. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo a dismissal without leave to amend, Smith v. Pac. Props. &

Dev. Corp., 358 F.3d 1097, 1100 (9th Cir. 2004), and for abuse of discretion a

denial of a motion for consolidation, Washington v. Daley, 173 F.3d 1158, 1169

n.13 (9th Cir. 1999). We affirm.

      The district court properly dismissed Henry’s and Lee’s Supremacy Clause

claim because they failed to allege that any defendant’s role in instituting

foreclosure proceedings or auctioning their home at a public sale was pursuant to a

state law which conflicted with federal law. See Golden State Transit Corp. v. City

of Los Angeles, 493 U.S. 103, 107 (1989) (stating that the Supremacy Clause “is

not a source of any federal rights; it secures federal rights by according them

priority whenever they come in conflict with state law.”).

      The district court also properly dismissed Henry’s and Lee’s Fourteenth

Amendment Due Process Clause claim because they failed to allege any state

action to which this Clause could apply. See United States v. Morrison, 529 U.S.

598, 621 (2000) (stating that the Fourteenth Amendment “erects no shield against
merely private conduct, however discriminatory or wrongful.”) (internal quotation

marks, citations, and brackets omitted).

      The district court did not abuse its discretion in denying Henry’s and Lee’s

request for consolidation because they were not entitled to add claims and

defendants to their existing action by trying to consolidate it with another action

instead of by seeking leave to amend it. See Fed. R. Civ. P. 15(a). We grant

appellees’ requests for judicial notice of two documents related to the

consolidation issue.

      Henry’s and Lee’s remaining contentions are unpersuasive.

      AFFIRMED.
