CHARLES KORNMANN, District Judge
Defendant Burlington Northern and Santa Fe Railway Company ("BNSF") filed an answer and a counterclaim against the Dakota Missouri Valley Western Railroad ("DMVW") and the Dakota, Minnesota Eastern Railroad Company ("DME") seeking (1) declaratory relief concerning the parties' rights under a 2001 donation agreement between the BNSF and the South Dakota Railroad Authority ("SDRA") relating to a section of track known as the Britton Line, (2) damages from the DMVW and the DME for tortious interference with the 2001 donation agreement, (3) declaratory relief concerning the parties' rights under a 1975 trackage rights agreement between the BNSF and the DME's predecessors and the parties' rights under a 1986 supplemental agreement between the BNSF and the DME purporting to limit rights along the Aberdeen Interchange Access line owned by the BNSF, (4) declaratory relief concerning the parties' rights under 1977 and 1979 agreements between the SDRA and the DME's predecessors, both such agreements relating to a section of track known as the Wolsey line, which agreement the BNSF claims an interest in by virtue of a 1981 operating agreement between the SDRA and the BNSF for the Wolsey line, (5) damages from the DME for breach of the 1975, 1977, 1979, and 1986 agreements, (6) damages from the DMVW for tortious interference with the 1975, 1977, 1979, and 1986 agreements, (7) damages from the DMVW for trespass upon the Aberdeen Interchange Access line, (8) damages from the DMVW and the DME for their unjust enrichment in using the Aberdeen Interchange Access line as a bridge route, (9), punitive damages from the DMVW and the DME, (10), injunctive relief against the DMVW preventing it from using the Aberdeen Interchange Access line as a bridge route, and (11), injunctive relief against the DME preventing it from using the Aberdeen Interchange Access line as a bridge route.
Both the DME (Doc. 31) and the DMVW (Doc. 32) filed motions to dismiss the BNSF's counterclaims. Both counterclaim defendants contend that this court lacks subject matter jurisdiction to hear the counterclaims and that the BNSF has failed to join a necessary and indispensable party, the SDRA. Both parties rely upon their previous briefs filed in support of remand in this action and in support of the motion to dismiss which is pending in the companion case, CIV 03-1003.
The BNSF has filed a motion (Doc. 33) to strike the motions to dismiss the counterclaims, contending that the counterclaim defendants have failed to comply with D.S.D. LR 7.2, both because they have technically failed to file a brief as required by D.S.D. LR 7.2(A) and because, taking into account the briefs referred to by reference in the motions to dismiss, the briefs exceed the page limitation set forth in D.S.D. LR 7.2(B).
For the reasons set forth in the order denying the motions to remand, the motions to dismiss the counterclaims should be denied. However, the DME, concurrently herewith, is dismissed as a party. Accordingly, the DME's motion to dismiss counterclaim should be granted. The motion to strike should be granted for the reasons set forth therein. However, that motion is moot by virtue of the court's ruling on the motions to dismiss.
Now, therefore,
IT IS ORDERED:
1. The motion (Doc. 31) to dismiss the counterclaims against the DME is granted without prejudice and without the taxation of costs.
2. The motion (Doc. 32) to dismiss the counterclaims against the DMVW is denied.
3. The motion (Doc 33) to strike the motions to dismiss is denied as moot.