MICHAEL S. HENRY and DOREEN H. LEE v. Homecomings Financial;

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL S. HENRY and DOREEN H.
LEE,
Plaintiffs - Appellants,
v.
HOMECOMINGS FINANCIAL; et al.,
Defendants - Appellees.
No. 09-15152
D.C. No. 2:08-CV-02029-JAM-
DAD
MEMORANDUM*
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
FILED
APR 20 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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

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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.

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