UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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Madison Walters
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1 CASE 0:09-cv JRT-JSM Document 109 Filed 05/06/11 Page 1 of 5 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA BP Group, Inc., Court File No. 09-CV-2040 (JRT/JSM) Plaintiff, vs. David N. Kloeber, Jr., Gerald L. Trooien, Capital Wings Airlines, Inc. SECOND AFFIDAVIT OF AARON MILLS SCOTT SUPPORTING MOTION FOR ATTORNEY FEES AND COSTS Defendants. STATE OF MINNESOTA ) ) ss COUNTY OF HENNEPIN ) Aaron Mills Scott, being first duly sworn on oath, states as follows: 1. My name is Aaron Mills Scott and I am an attorney representing Plaintiff BP Group, Inc. ( BP Group ) in this matter. I make this Affidavit in support of BP Group s Reply Brief supporting its Motion for Attorney Fees, Costs, and Interest. I make this Affidavit of my own personal knowledge. I am above eighteen years of age, of sound mind, and, if called to testify, could and would competently testify hereto. 2. BP Group produced its full billing records for all attorney fees to Defendant David Kloeber ( Kloeber ), subject to minimal redactions to preserve attorney workproduct. Kloeber filed a true and correct copy of those billing records as Exhibit B to the Declaration of Michael H. Streater ( Streater Decl. ). BP Group incorporates those records as part of the record supporting its motion.

STATE OF MINNESOTA ) ) ss COUNTY OF HENNEPIN ) Aaron Mills Scott, being first duly sworn on oath, states as follows: 1.

2 CASE 0:09-cv JRT-JSM Document 109 Filed 05/06/11 Page 2 of 5 3. From the Minnesota Trial Court Public Access website, I have identified at least four civil litigation matters filed in 2009 in which attorney Michael Streater at the Briggs and Morgan law firm represents David Kloeber in a matter that appears directly related to the JetChoice/CWA businesses. Attached hereto as Exhibit F are true and correct copies of the Registers of Actions for each of those matters. 4. By representing Kloeber in multiple separate actions, many of which were filed well before this case, Kloeber s attorneys at Briggs and Morgan undoubtedly reduced the need to bill time in this litigation for tasks like fact investigation. For example, BP Group subpoenaed and took the deposition of former JetChoice President Brian Overvig to obtain information from him. But Kloeber s attorney actively represents Brian Overvig, along with Kloeber, in litigation initiated in Ramsey County District Court as Case No. 27-CV and presently pending before the Minnesota Court of Appeals entitled Provell Inc. v. JetChoice I LLC, et al. Kloeber s attorneys had access to substantial information without the need to incur attorney fees in this particular litigation matter due to their representation of Kloeber in other cases. 5. It also appears that Kloeber incurred a significantly reduced amount of legal expenses in this matter because certain document gathering and production was completed in other litigation. Nearly all the documents produced by Kloeber in this litigation came in the form of a disk produced in December 2009, stamped with the name and case number of the Provell, Inc. v. JetChoice I, LLC, et al. case. Review of the bills filed by Kloeber s attorneys reveals that Kloeber was billed no time whatsoever for document review or production in November or December (Streater Decl. Ex. C at 2

represents David Kloeber in a matter that appears directly related to the JetChoice/CWA businesses.

3 CASE 0:09-cv JRT-JSM Document 109 Filed 05/06/11 Page 3 of ) Effectively, Kloeber s document production in this case was free because it had already been completed in another matter. These facts result in an unrealistically low amount of legal expense incurred by Kloeber in this litigation, particularly in comparison to BP Group which completed all discovery in this case within this litigation. 6. Briggs and Morgan is only one of the firms that have represented Kloeber s interests with respect to this dispute. Before litigation was filed, BP Group s counsel negotiated directly over several months with Marvin Murray of Aerlex Law Group, an attorney who represented Kloeber s company, CWA, as well as Michael McGrath, bankruptcy counsel for JetChoice I, LLC, who attempted to negotiate a resolution that would not impose any liability on Kloeber. BP Group s billing entries from this period reflect these negotiations. (Streater Decl. Ex. B at 5-8.) 7. Both before and during the litigation, Kloeber has been represented with respect to this matter by Michael Brutlag of Brutlag, Hartmann, and Trucke, P.A., who has apparently represented Kloeber for years. 8. I am aware that Kloeber has challenged various expenses incurred by BP Group claiming they are unrelated to Kloeber or otherwise cannot be awarded. This is incorrect. All attorney fees and costs incurred by BP Group in this matter were reasonably and necessarily incurred by BP Group as part of the dispute under the Aircraft Management Agreement and are therefore awardable under the terms of the Aircraft Management Agreement. Kloeber specifically challenges legal fees incurred by BP Group associated with negotiating a settlement with Defendant and co-guarantor Jerry Trooien, obtaining Trooien s sworn statement, dismissing BP Group s claim against him 3

this litigation. 6. Briggs and Morgan is only one of the firms that have represented Kloeber s interests with respect to this dispute.

4 CASE 0:09-cv JRT-JSM Document 109 Filed 05/06/11 Page 4 of 5 without prejudice, and asserting a claim to recover against Trooien in Trooien s bankruptcy case. Those expenses were only incurred because CWA failed to perform under the Aircraft Management Agreement. They comprise part of the dispute stemming from that breach. If not for the failure of CWA and the guarantors to perform their obligations, BP Group would not have needed to assert a claim or seek to collect on the claim. Kloeber also objects to paying approximately $2,000 incurred by BP Group s attorneys associated with preparing for, attending, and reporting on a single April 2009 hearing in Trooien et al. v. Corsair Aviation, LLC, Ramsey County Case No. 62-CV Kloeber incorrectly characterizes this proceeding as unrelated to this litigation. Among other relief sought by Jerry Trooien at that hearing was the appointment of a receiver over Corsair Aviation, LLC, the parent company of CWA. As of April 2009, the BP Group Aircraft was still sitting on the ground at West Star Aviation because CWA and the guarantors had failed to pay the bill. BP Group had a direct and immediate interest in the outcome of that hearing, the fate of Corsair Aviation, LLC and the companies it owned, and the guarantors. Attending that hearing was a reasonable and prudent expense to incur for BP Group as a result of the dispute over the Aircraft Management Agreement. Further affiant sayeth not. / / / / / / 4

If not for the failure of CWA and the guarantors to perform their obligations, BP Group would not have needed to assert a claim or seek to collect on the claim.

5 CASE 0:09-cv JRT-JSM Document 109 Filed 05/06/11 Page 5 of 5 Dated: May 6, 2011 Subscribed and sworn to before me this 6th day of May, s:/ Aaron Mills Scott Aaron Mills Scott s: Kathleen G. Peterson Notary Public State of Minnesota My Commission Expires 1/31/ OPPENHEIMER: v01 05/06/2011

s:/ Aaron Mills Scott Aaron Mills Scott s: Kathleen G.

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