WILLIAM DOWNES, Chief Judge, District

This matter comes before the Court on General Dynamics Aerospace Corporation's Motion to Dismiss, Textron, Inc.'s Motion to Dismiss, Hawkins Powers' Motion to Dismiss Plaintiffs' Bivens Claim, and Hawkins Powers' Motion to Dismiss Plaintiffs' Strict Liability Claim Based on Alleged Ultrahazardous Activities. Several individual defendants have joined Hawkins Powers' Motion to Dismiss the strict liability claim, including Rick Howe, George Kelley, Tim Mikus, Ryan Powers, Stephen Dunn, and Troy Woydziak. The Court, having reviewed the materials submitted in opposition and support, having heard oral argument, and being otherwise fully advised, FINDS and ORDERS as follows:

BACKGROUND

Plaintiffs in this action are the survivors of Ricky Lee Schwartz and Milton Stollak who died in a plane crash while piloting an aircraft near Estes Park, Colorado. The aircraft was engaged in fire suppression, under contract with the United States Forest Service ("USFS"). The aircraft had been manufactured by Consolidated Vultee in 1945 for use as an anti-submarine patrol bomber and was delivered to the United States Navy the same year. According to Plaintiffs' complaint, the aircraft was disposed of by the Navy after World War II and thereafter converted to an airtanker, pursuant to Supplemental Type Certificate AR-29.

The aircraft was acquired by Hawkins Powers in 1969 and the engine was modified to increase the horse power. The aircraft operated pursuant to a Federal Aviation Aministration ("FAA") restricted category airworthiness certificate. On July 18, 2002, while engaged in fire suppression, the aircraft crashed after the left wing of the airplane detached from the fuselage at the wing root. The two pilots were killed. The crash occurred 57 years after the aircraft was first delivered to the Navy.

Plaintiffs filed a complaint against Hawkins Powers Aviation, Inc. and Hawkins Powers Flight Services, Inc. (hereinafter referred to collectively as "Hawkins Powers"), alleging among other claims that Hawkins Powers should be held strictly liable based on the ultrahazardous nature of the activity and should be held liable under Bivens. Against General Dynamics Aerospace Corporation ("General Dynamics") and Textron, Inc., Plaintiffs make various claims, including negligent or intentional infliction of emotional distress, negligence, strict liability based on the ultrahazardous nature of the activity, strict products liability, Bivens action, wrongful death and survival of action, loss of consortium, breach of implied warranty of fitness for a particular purpose, breach of warranty of merchantability, and breach of express warranty.

Four motions have been filed in this case. General Dynamics has filed a motion to dismiss, asserting that all claims against it, as a successor to the aircraft manufacturer are barred by the statute of repose in the General Aviation Revitalization Act of 1994. A second motion by corporate defendant Textron Inc. joins in General Dynamics' motion, relying on the same argument. Since the argument on these motions, Textron, Inc. was voluntarily dismissed as a party to the litigation. Therefore, its motion will be denied as moot. A third motion to dismiss is brought by Hawkins Powers with regard to the Bivens claim. The final motion to dismiss, also brought by Hawkins Powers, asks for dismissal of the strict liability claim based on the ultrahazardous nature of the activity. Various individual defendants, including Howe, Kelley, Mikus, Ryan Powers, Dunn, and Woydziak, have joined in this final motion.

STANDARD OF REVIEW

Defendants move to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). In ruling on motions to dismiss for failure to state a claim, "All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true." Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002) (quoting Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984)). "The court must view all reasonable inferences in favor of the plaintiff, and the pleadings must be liberally construed. The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support her claims." Id. (citations omitted). "A Rule 12(b)(6) motion to dismiss may be granted only if it appears beyond a doubt that the plaintiff is unable to prove any set of facts entitling her to relief under her theory of recovery." Id. (citing Conley v. Gibson, 335 U.S. 41, 45-46 (1957)). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is sufficient to state a claim for which relief may be granted." Sutton v. Utah State Sch. for the Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (quoting Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991)).

DISCUSSION

General Dynamics' Motion to Dismiss Based on GARA's Statute of Repose

The General Aviation Revitalization Act of 1994 ("GARA"), 49 U.S.C. § 40101 was enacted in part to address serious concerns "about the enormous product liability costs that our tort system had imposed upon manufacturers of general aviation aircraft." Lyon v. Agusta S.P.A., 252 F.3d 1078, 1084 (9th Cir. 2001). Congress enacted GARA in an effort to curb "the long tail of liability attached to those aircraft, which could be used for decades after they were first manufactured and sold." Id. (citing H.R. Rep. No. 103-525, pt. I, at 1-4 (1994), reprinted in 1994 U.S.C.C.A.N. 1638, 1638-41). GARA's statute of repose states,

Except as provided in subsection (b), no civil action for damages for death or injury to persons or damages to property arising out of an accident involving a general aviation aircraft may be brought against the manufacturer of the aircraft or the manufacturer of any new component, system, subassembly, or other part of the aircraft, in its capacity as a manufacturer if the accident occurred —

(1) after the applicable limitation period beginning on —

(A) the date of delivery of the aircraft to its first purchaser or lessee, if delivered directly from the manufacturer; or

(B) the date of first delivery of the aircraft to a person engaged in the business of selling or leasing such aircraft. . . .

GARA § 2(a). The "applicable limitation period" is defined as "18 years with respect to general aviation aircraft. . . ." Id. § 3(3). General Dynamics argues that the application of GARA's statute of repose bars all claims against it.

Plaintiffs contend that GARA does not apply because the aircraft in question did not meet the definition of a "general aviation aircraft" under GARA. Plaintiffs also assert that this case falls within the knowing misrepresentation and warranty exceptions to GARA. In addition, Plaintiffs argue that the statute of repose may have begun to run anew due to the replacement of component parts. They request that the motion to dismiss be denied and that discovery be allowed on this issue. Finally, Plaintiffs contend that many of the claims must survive even if GARA applies because they allege claims against General Dynamics in its capacity as other than a manufacturer.

A. General Aviation Aircraft

The parties first disagree as to whether the aircraft in this case is a "general aviation aircraft" for the purposes of the GARA statute of repose. GARA defines "general aviation aircraft" as,

any aircraft for which a type certificate or an airworthiness certificate has been issued by the Administrator of the Federal Aviation Administration, which, at the time such certificate was originally issued, had a maximum seating capacity of fewer than 20 passengers, and which was not, at the time of the accident, engaged in scheduled passenger-carrying operations. . . .

GARA § 2(c). General Dynamics claims that this aircraft clearly fits the definition of a general aviation aircraft because it operated pursuant to an airworthiness certificate, seated fewer than 20 passengers when the certificate was issued, and was not engaged in passenger-carrying operations at the time of the accident. Plaintiffs argue that the aircraft was not a "general aviation aircraft" because it was a "public aircraft" within the meaning of the Federal Aviation Act of 1958 ("FAA"), and therefore, not included in the definition of "general aviation aircraft." Plaintiffs' argument is unpersuasive. First, the definitions in the FAA are for use in interpreting the FAA, not GARA. Second, GARA has its own definitions, and where applicable, adopts the definitions of the FAA. See GARA § 3. Third, nothing in the definition of "general aviation aircraft" in GARA explicitly prohibits an aircraft that meets the definition of a "public aircraft" under the FAA from being considered a "general aviation aircraft" under GARA. See GARA § 2(c). In short, the terms "public aircraft" and "general aviation aircraft" are not mutually exclusive and it is possible that this aircraft could have been considered both a "public aircraft" under the FAA and a "general aviation aircraft" under GARA.

Plaintiffs also argue that the aircraft is not a "general aviation aircraft" because it had not been issued an "airworthiness certificate." It is undisputed that the aircraft operated pursuant to a "Special Restricted Airworthiness Certificate." Plaintiffs argue, however, that only a "Standard Airworthiness Certificate" qualifies as an "airworthiness certificate" under GARA. In defining "airworthiness certificate," GARA incorporates the description of airworthiness certificates in the FAA. GARA § 3(2) (referencing FAA, 49 U.S.C. § 44704(c)(1)). The FAA states, "The Administrator shall issue an airworthiness certificate when the Administrator finds that the aircraft conforms to its type certificate and, after inspection, is in condition for safe operation." 49 U.S.C. § 44704(d)(1). Nowhere in the definition of "airworthiness certificate" is there reference to either "standard" or "restricted" certificates. The distinction is never made. The definition of "airworthiness certificate" is broad enough to encompass the "restricted" airworthiness certificate issued to the aircraft in this case.

Plaintiffs next argue that even if the aircraft was issued an airworthiness certificate, subsequent modifications to the aircraft were never approved, making the certification improper. Plaintiffs cite no authority for the proposition that an airworthiness certificate becomes invalid if subsequent modifications are made to an aircraft. The regulations of the FAA do require approval for return to service after an aircraft has undergone an alteration. See 14 C.F.R. § 43.5. This Court, however, can find no authority requiring issuance of a new airworthiness certificate after alterations. On the contrary, an airworthiness certificate remains effective so long as alterations are performed in accordance with the regulations. Id. § 21.181(a)(1). Plaintiffs have not alleged that the aircraft in this case was not approved for return to service after it was altered to fight forest fires. Rather, they aver only that no new airworthiness certificate was issued. As this Court can find no such requirement in the regulations, it must assume that the original airworthiness certificate remains valid, so long as the alterations to the aircraft are inspected and the aircraft approved for return to service. The Court finds that the aircraft in this case met the definition of "general aviation aircraft" and GARA's statute of repose applies.

B. Modifications

Plaintiffs next contend that subsequent modifications were made to the aircraft which may have tolled the statute of repose. GARA's statute of repose is "rolling" in the sense that the addition of a new component part may start the statute of repose running anew. The addition of a new component part does not "implicate GARA's rolling provision, however, unless the revised part is `alleged to have caused [the] death, injury, or damage.'" Caldwell v. Enstrom Helicopter Corp., 230 F.3d 1155, 1158 (9th Cir. 2000) (quoting GARA § 2(a)(2)). Plaintiffs have failed to aver in the Complaint the replacement of any component part or addition of any new component part by General Dynamics, let alone that the new part may have caused the accident. In fact, the Complaint states that "the component part which failed may have been improperly constructed at the original time of a/c assembly." Complaint, ¶ 64 (emphasis added). As such, the 18 year statute of repose began to run at the original transfer of the aircraft in 1945, see Estate of Kennedy v. Bell Helicopter Textron, Inc., 283 F.3d 1107, 1112 (9th Cir. 2002), and absent the application of one of the exceptions set forth in GARA, recovery by the Plaintiffs against General Dynamics is barred.

C. Exceptions to GARA

Plaintiffs' third argument is that two exceptions to GARA's statute of repose apply in this case. First, they rely on the knowing misrepresentation exception, which applies

if the claimant pleads with specificity the facts necessary to prove, and proves, that the manufacturer with respect to a type certificate or airworthiness certificate for, or obligations with respect to continuing airworthiness of, an aircraft or a component, system, subassembly, or other part of an aircraft knowingly misrepresented to the Federal Aviation Administration, or concealed or withheld from the Federal Aviation Administration, required information that is material and relevant to the performance or the maintenance or operation of such aircraft, or the component, system, subassembly, or other part, that is causally related to the harm which the claimant allegedly suffered. . . .

GARA § 2(b)(1) (emphasis added). The statute requires the plaintiff to plead the facts necessary to prove the knowing misrepresentation with specificity. Id. Interpreting this requirement, the United States District Court Judge Brimmer likened the standard to Federal Rule of Civil Procedure 9(b), which requires that allegations of fraud be plead with particularity. Rickert v. Mitsubishi Heavy Industries, Ltd., 923 F. Supp. 1453, 1456 (D. Wyo. 1996) reversed on other grounds 929 F. Supp. 380 (D. Wyo. 1996). The elements that must be plead with specificity are: (1) knowledge; (2) misrepresentation, concealment, or withholding of required information to or from the FAA; (3) materiality and relevance; and (4) a causal relationship between the harm and the accident. Rickert, 929 F.Supp. at 381.

Plaintiffs have failed to aver facts supporting the elements of a knowing misrepresentation with specificity. Plaintiffs' Complaint merely alleges that "[t]he aircraft was operated pursuant to an FAA restricted category airworthiness certificate, which was improperly issued by the FAA . . .," Complaint, ¶ 51, and that "Corporate Defendants willfully and wantonly failed to properly update the maintenance required on this H P plane. . . ." Complaint, ¶ 52. These allegations are not specific enough to warrant application of the knowing misrepresentation exception. Plaintiffs assert in their response to the motion to dismiss that General Dynamics knowingly withheld information about the modifications performed on the aircraft. Again, Plaintiffs fail to plead "specific facts," as required by GARA, that would be sufficient to show that the corporate defendants knew of modifications to the aircraft, concealed information from the FAA, or that there was any causal nexus between the alleged concealment and the damages in this case. The Court holds that the knowing misrepresentation exception does not apply.

Plaintiffs also contend that the warranty exception, which applies "to an action brought under a written warranty enforceable under law," bars the application of GARA in this case. Although, Plaintiffs bring a claim for breach of express warranty, nowhere have Plaintiffs alleged the existence of a written warranty. As such, the exception for written warranties does not apply. D. Capacity as Manufacturers

The final argument asserted by Plaintiffs is that even if GARA's statute of repose applies, it only bars those causes of action asserted against General Dynamics in its capacity as a manufacturer. Plaintiffs are correct in this assertion. GARA § 2(a). None of the claims brought against General Dynamics, however, stem from any capacity other than that of manufacturer. Plaintiffs assert that they are suing General Dynamics, not only as a manufacturer, but as an entity responsible for updating the maintenance schedules of the aircraft. The one case Plaintiffs cite does not support this contention. In Burroughs v. Precision Airmotive, Corporation, the court gave two examples of when a manufacturer may not be acting in the capacity of a manufacturer for purposes of GARA — "if the manufacturer committed a negligent act repairing or servicing an aircraft or as a pilot." 78 Cal. App. 4th 681, 691 (Cal.Ct.App. 2000). Neither of these two situations was alleged in this case. Further, General Dynamics did have a "responsibility to update maintenance schedules," as Plaintiffs claim, that duty would have arisen out of its capacity as a manufacturer.

The Court holds that GARA applies and all claims against General Dynamics are barred by the 18 year statute of repose. All claims against General Dynamics are dismissed with prejudice.

Hawkins Powers' Motion to Dismiss Bivens Claim

Defendant Hawkins Powers moves to dismiss Plaintiffs' Bivens claim, arguing that a Bivens claim cannot lie against a private entity. A Bivens claim provides a tort remedy for an injured party to sue a federal officer, or a person operating under color of federal authority, who has violated the claimant's constitutional rights. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiffs allege that Hawkins Powers acted under color of federal law and engaged in federal action by fighting forest fires on federal lands while under contract with the USFS. Complaint, ¶¶ 121-22. Plaintiffs also claim that Hawkins Powers deprived the pilots of their lives without due process of law by failing to maintain the fire fighting aircraft fleet due to the coercion and encouragement of the federal government. Complaint, ¶¶ 125-29.

In Correctional Services Corp. v. Malesko, the United States Supreme Court held that a plaintiff could not assert a Bivens claim against a private entity under contract with the United States government. 534 U.S. 61, 63 (2001). In Malesko, a federal inmate filed suit against Correctional Services Corporation, a private entity, under contract with the Bureau of Prisons to operate a halfway house to which Mr. Malesko was assigned. Id. at 63-64. Mr. Malesko was injured while housed at the facility and brought a Bivens action against Correctional Services Corporation. Id. at 64-65. The Court recognized that Bivens actions have been extended in very limited circumstances, id. at 67-70, and declined to extend Bivens to allow suit against a private company under contract with the United States government.

The holding in Malesko was based in part on the Supreme Court's decision in Federal Deposit Insurance Corporation v. Meyer, where the Court had determined that a Bivens action could not lie against an agency of the federal government. Id. at 69 (citing FDIC v. Meyer, 510 U.S. 471, 484-86 (1994)). The Meyer Court reasoned that the purpose of a Bivens claim was to deter the officer, not the agency, and that to extend the remedy to allow a suit against federal agencies would undermine the deterrent effect of Bivens claims. Id. at 70-71 (citing FDIC v. Meyer, 410 U.S. at 485). "On the logic of Meyer," the Court in Malesko held that "inferring a constitutional tort remedy against a private entity . . . is foreclosed." Id. at 71. Other courts have interpreted the holding in Malesko as foreclosing Bivens claims against any private entity, even those acting under color of federal authority. Stoutt v. Banco Popular de Puerto Rico, 320 F.3d 26, 33 (1st Cir. 2003); Gantt v. Security, USA, 356 F.3d 547, 552 (4th Cir. 2002); Muick v. Genayra Electronics, 280 F.3d 741, 742 (7th Cir. 2002); Root v. United States, 67 Fed. Appx. 451, 451, 2003 WL 21421644, *1 (9th Cir. 2003) (unpublished).

Plaintiffs cite several cases in an attempt to avoid the holding in Malesko that a Bivens action cannot be maintained against a private entity. The cases cited, however, were decided prior to the U.S. Supreme Court's decision in Malesko; Heinrich ex rel. Heinrich v. Sweet, 62 F. Supp. 2d 282, 306 (D. Mass. 1999); Schoewengerdt v. General Dynamics Corp., 823 F.2d 1328 (9th Cir. 1987); Reuber v. United States, 750 F.2d 1039 (D.C. Cir. 1985), overruled by, Kauffman v. Anglo-American School of Sofia, 28 F.3d 1223 (D.C. Cir. 1994); Dobyns v. E-Systems, Inc., 667 F.2d 1219 (5th Cir. 1982); Yiamouyiannis v. Chemical Abstracts Serv., 521 F.2d 1392 (6th Cir. 1975); Gerena v. Puerto Rico Legal Services, Inc., 697 F.2d 447 (1st Cir. 1983); with the exception of one, Sarro v. Cornell Corrections, Incorporated, which incidentally concluded that a private corporation could not be sued under Bivens. 248 F.Supp.2d 52, 58 (D.R.I. 2003). The Court does not find the authorities cited by the Plaintiffs to be persuasive.

In support of their Bivens claim, Plaintiffs also argue that this case is distinguishable from Malesko. In Malesko, the Court's decision not to extend the Bivens action against Correctional Services Incorporated was based in part on the fact that Mr. Malesko had alternative remedies available to him other than the Bivens claim. Malesko, 534 U.S. at 72-73. Mr. Malesko could pursue state tort remedies. Id. at 73. Plaintiffs contend that they have no other alternative remedy if the Bivens claim is dismissed because the defendants will probably argue that their numerous other claims are barred by worker's compensation. Defendants, however, have not yet asserted that worker's compensation will dispose of the other claims. Further, Plaintiffs aver that worker's compensation benefits have been denied to them. If the Plaintiffs claims are not covered by worker's compensation, or Hawkins Powers did not carry worker's compensation on the decedents, their claims would not be barred by worker's compensation. WYO. STAT. ANN. § 27-14-104(c) (LexisNexis 2003). The Court does not have enough information to determine whether worker's compensation bars the Plaintiffs' tort claims in this case. The fact remains that Hawkins Powers is a private entity. Relying on Malesko, this Court holds that a Bivens action against Hawkins Powers, a private entity, is foreclosed. Hawkins Powers' Motion to Dismiss Strict Liability Claim, joined by individual defendants

The final motion to dismiss, submitted by Hawkins Powers and joined by individual defendants Howe, Kelley, Mikus, Ryan Powers, Dunn, and Woydziak, argues that the Wyoming Supreme Court has expressly declined to impose strict liability on the conduct of ultrahazardous activities. Wyrulec Co. v. Schutt, 866 P.2d 756, 761-62 (Wyo. 1993). Therefore, defendants argue the claim should be dismissed. The Wyoming Supreme Court in Wyrulec held that the nature of an activity as ultrahazardous does not change the standard of care for the defendant. Id. at 761. The standard of care remains that which an "ordinarily careful person would exercise under all the circumstances of the case." Id. at 762. "[U]nder Wyoming law, a defendant engaged in an ultrahazardous activity must exercise a degree of care commensurate with the danger to meet the ordinary care standard." Hynes v. Energy West, Inc., 211 F.3d 1193, 1198 (10th Cir. 2000) (citing Wyrulec, 866 P.2d at 762). In sum, any claim for strict liability based on the ultrahazardous nature of the activity is subsumed by the negligence claim.

Plaintiffs counter that even if there is no strict liability claim in Wyoming for ultrahazardous activities, strict products liability exists in Wyoming. Ogle v. Caterpillar Tractor Co., 716 P.2d 334, 344 (Wyo. 1986). The elements of strict products liability are: (1) that sellers were engaged in the business of selling the product that caused the harm; (2) that the product was defective when sold; (3) that the product was unreasonably dangerous to the user or consumer; (4) that the product was intended to and did reach the consumer without substantial change in the condition in which it was sold; and (5) that the product caused physical harm to the plaintiff/customer. Id. The problem for Plaintiffs, however, is that they did not assert a claim for strict products liability, but for strict liability based on the ultrahazardous nature of the activity. The Court must dismiss the strict liability claim based on the ultrahazardous nature of the activity as it is not cognizable under Wyoming law.

Plaintiffs have requested that if their strict liability claim is dismissed they be given leave to amend the complaint to state a claim for strict products liability. This Court can think of no possible scenario which would allow the Plaintiffs to state such a claim. As mentioned above, a strict products liability claim requires that the defendant be engaged in the business of selling the product that caused the harm. Id. By no stretch of the imagination could either Hawkins Powers or the individual defendants be considered "sellers" of the aircraft. Thus, the strict liability claim based on the ultrahazardous nature of the activity is dismissed with prejudice. THEREFORE it is hereby ORDERED that General Dynamics Aerospace Corporation's Motion to Dismiss is GRANTED and all claims against General Dynamics are DISMISSED, with prejudice.

It is hereby further ORDERED that Textron, Inc.'s Motion to Dismiss is DENIED as moot.

It is hereby further ORDERED that Hawkins Powers' Motion to Dismiss Plaintiffs' Bivens Claim is GRANTED and the Bivens claim is DISMISSED, with prejudice.

It is hereby further ORDERED that Hawkins Powers' Motion to Dismiss Plaintiffs' Strict Liability Claim Based on Alleged Ultrahazardous Activities, in which Defendants Howe, Kelley, Mikus, Ryan Powers, Dunn, and Woydziak joined, is GRANTED, and the strict liability claim is DISMISSED, with prejudice, as to Hawkins Powers and the individual defendants named above.