ORDER GRANTING MOTION TO DISMISS COMPLAINT
RICHARD SEEBORG, District Judge.
Plaintiff Derek Chabrowski and defendant Courtney Lawson are former business partners whose relationship has deteriorated. Defendants' previous motion to dismiss was granted with leave to amend, and plaintiff filed a First Amended Complaint ("FAC"). Plaintiff alleges violations of his constitutional rights under the First, Fourth, Fifth, and Fourteenth Amendments, as well as of his civil rights under 42 U.S.C. § 1983, common law malicious prosecution, and a claim against the State of California under the theory of respondeat superior. Defendants move to dismiss the FAC. Plaintiff untimely filed an opposition to the motion after the date for which it was scheduled to be heard. For the following reasons, defendants' motion to dismiss is granted, without leave to amend.
The initial complaint in this case, although not a paragon of clarity, appeared to advance claims for violations of due process and First Amendment rights, as well as defamation, intentional infliction of emotional distress, civil conspiracy, California's Anti-SLAPP statute (California Civil Code Section 425.16). Defendants moved to dismiss it on a variety of grounds, including for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), arguing that diversity jurisdiction could not exist because Chabrowski had not alleged that the amount in controversy exceeded $75, 000. See 28 U.S.C. § 1332. As Chawbrowski failed to carry his burden of pleading that the amount in controversy was sufficient to support diversity jurisdiction, the case was dismissed for lack of subject matter jurisdiction. He was given leave to file an amended complaint to, if he could do so in good faith, include averments that would support the existence of diversity jurisdiction. The order dismissing the complaint also noted, as Chabrowski has potentially identified claims for constitutional violations, an amended complaint may potentially trigger federal question jurisdiction.
Chabrowski's FAC attempts to correct jurisdictional defects in the original complaint by averring that he seeks over two million dollars in damages and by clarifying his state of residency. It also clarifies that he is bringing claims for relief for constitutional violations pursuant to 42 U.S.C. § 1983, thereby triggering federal question jurisdiction under 28 U.S.C. § 1331.
III. LEGAL STANDARD
I. Dismissal Under Federal Rule of Civil Procedure 12(b)(1)
Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(1) when the district court lacks subject matter jurisdiction over the claim. A federal court is presumed to lack subject matter jurisdiction until the contrary affirmatively appears. Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). Federal question jurisdiction exists when a civil claim for relief "arising under the Constitution, laws, or treaties of the United States" appears on the face of the well-pleaded complaint. 28 U.S.C. § 1331.
B. Dismissal under Federal Rule of Civil Procedure 12(b)(6)
A motion to dismiss a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims alleged in the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal under Rule 12(b)(6) may be based on either the "lack of a cognizable legal theory" or on "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). When evaluating such a motion, all material allegations in the complaint must be accepted as true, even if doubtful, and construed in the light most favorable to the non-moving party. Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). In dismissing a complaint, leave to amend must be granted unless it is clear that the complaint's deficiencies cannot be cured by amendment. Lucas v. Dep't of Corporations, 66 F.3d 245, 248 (9th Cir. 1995).
Defendants move to dismiss the complaint on a variety of grounds, including that subject matter jurisdiction over this case is absent because Chabrowski has not properly plead the requisites for finding diversity jurisdiction. Defendants' argument that the FAC should be dismissed for lack of diversity jurisdiction is a non sequiter. Plaintiff attempts to advance claims for violation of his civil rights under 42 U.S.C. § 1983. It is therefore irrelevant whether diversity jurisdiction exists pursuant to 28 U.S.C. § 1332 because subject matter jurisdiction instead lies under 28 U.S.C. § 1331 due to the fact that Chawbowski's FAC presents a civil claim for relief arising under the Constitution of the United States.
Defendants also move to dismiss on the basis that the complaint fails to state a claim upon which relief may be granted under 42 U.S.C. § 1983. That statute pertains to "[e]very person who under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory or the District of Columbia" who deprives "any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." 42 U.S.C § 1983. The statute "was intended to [create] a species of tort liability' in favor of persons who are deprived of rights, privileges, or immunities secured' to them by the Constitution" by state actors. Carey v. Piphus, 435 U.S. 247, 253 (1978). While brought as two separate claims, plaintiff's alleged violations of the Constitution are subsumed by his claim under 42 U.S.C. § 1983, as that statute provides the ...