Scott Second Affidavit in Support of Motion for Attorney Fees

CASE 0:09-cv-02040-JRT-JSM Document 109 Filed 05/06/11 Page 1 of 5UNITED STATES DISTRICT COURTDISTRICT OF MINNESOTABP 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 OFAARON MILLS SCOTTSUPPORTING MOTION FORATTORNEY FEES AND COSTSDefendants.STATE OF MINNESOTA )) ssCOUNTY 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 PlaintiffBP Group, Inc. (“BP Group”) in this matter. I make this Affidavit in support of BPGroup’s Reply Brief supporting its Motion for Attorney Fees, Costs, and Interest. I makethis Affidavit of my own personal knowledge. I am above eighteen years of age, ofsound 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 DefendantDavid 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 theDeclaration of Michael H. Streater (“Streater Decl.”). BP Group incorporates thoserecords as part of the record supporting its motion.

CASE 0:09-cv-02040-JRT-JSM Document 109 Filed 05/06/11 Page 2 of 53. From the Minnesota Trial Court Public Access website, I have identified atleast four civil litigation matters filed in 2009 in which attorney Michael Streater at theBriggs and Morgan law firm represents David Kloeber in a matter that appears directlyrelated to the JetChoice/CWA businesses. Attached hereto as Exhibit F are true andcorrect copies of the Registers of Actions for each of those matters.4. By representing Kloeber in multiple separate actions, many of which werefiled well before this case, Kloeber’s attorneys at Briggs and Morgan undoubtedlyreduced the need to bill time in this litigation for tasks like fact investigation. Forexample, BP Group subpoenaed and took the deposition of former JetChoice PresidentBrian Overvig to obtain information from him. But Kloeber’s attorney activelyrepresents Brian Overvig, along with Kloeber, in litigation initiated in Ramsey CountyDistrict Court as Case No. 27-CV-09-10849 and presently pending before the MinnesotaCourt of Appeals entitled Provell Inc. v. JetChoice I LLC, et al. Kloeber’s attorneys hadaccess to substantial information without the need to incur attorney fees in this particularlitigation matter due to their representation of Kloeber in other cases.5. It also appears that Kloeber incurred a significantly reduced amount oflegal expenses in this matter because certain document gathering and production wascompleted in other litigation. Nearly all the documents produced by Kloeber in thislitigation came in the form of a disk produced in December 2009, stamped with the nameand case number of the Provell, Inc. v. JetChoice I, LLC, et al. case. Review of the billsfiled by Kloeber’s attorneys reveals that Kloeber was billed no time whatsoever fordocument review or production in November or December 2009. (Streater Decl. Ex. C at2

CASE 0:09-cv-02040-JRT-JSM Document 109 Filed 05/06/11 Page 3 of 56-8.) Effectively, Kloeber’s document production in this case was “free” because it hadalready been completed in another matter. These facts result in an unrealistically lowamount of legal expense incurred by Kloeber in this litigation, particularly in comparisonto 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’sinterests with respect to this dispute. Before litigation was filed, BP Group’s counselnegotiated directly over several months with Marvin Murray of Aerlex Law Group, anattorney who represented Kloeber’s company, CWA, as well as Michael McGrath,bankruptcy counsel for JetChoice I, LLC, who attempted to negotiate a resolution thatwould not impose any liability on Kloeber. BP Group’s billing entries from this periodreflect these negotiations. (Streater Decl. Ex. B at 5-8.)7. Both before and during the litigation, Kloeber has been represented withrespect to this matter by Michael Brutlag of Brutlag, Hartmann, and Trucke, P.A., whohas apparently represented Kloeber for years.8. I am aware that Kloeber has challenged various expenses incurred by BPGroup claiming they are unrelated to Kloeber or otherwise cannot be awarded. This isincorrect. All attorney fees and costs incurred by BP Group in this matter werereasonably and necessarily incurred by BP Group as part of the dispute under the AircraftManagement Agreement and are therefore awardable under the terms of the AircraftManagement Agreement. Kloeber specifically challenges legal fees incurred by BPGroup associated with negotiating a settlement with Defendant and co-guarantor JerryTrooien, obtaining Trooien’s sworn statement, dismissing BP Group’s claim against him3

CASE 0:09-cv-02040-JRT-JSM Document 109 Filed 05/06/11 Page 4 of 5without prejudice, and asserting a claim to recover against Trooien in Trooien’sbankruptcy case. Those expenses were only incurred because CWA failed to performunder the Aircraft Management Agreement. They comprise part of the dispute stemmingfrom that breach. If not for the failure of CWA and the guarantors to perform theirobligations, BP Group would not have needed to assert a claim or seek to collect on theclaim. Kloeber also objects to paying approximately $2,000 incurred by BP Group’sattorneys associated with preparing for, attending, and reporting on a single April 2009hearing in Trooien et al. v. Corsair Aviation, LLC, Ramsey County Case No. 62-CV-09-3075. Kloeber incorrectly characterizes this proceeding as “unrelated” to this litigation.Among other relief sought by Jerry Trooien at that hearing was the appointment of areceiver over Corsair Aviation, LLC, the parent company of CWA. As of April 2009, theBP Group Aircraft was still sitting on the ground at West Star Aviation because CWAand the guarantors had failed to pay the bill. BP Group had a direct and immediateinterest in the outcome of that hearing, the fate of Corsair Aviation, LLC and thecompanies it owned, and the guarantors. Attending that hearing was a reasonable andprudent expense to incur for BP Group as a result of the dispute over the AircraftManagement Agreement.Further affiant sayeth not./ / // / /4

CASE 0:09-cv-02040-JRT-JSM Document 109 Filed 05/06/11 Page 5 of 5Dated: May 6, 2011Subscribed and sworn to before me this6th day of May, 2011.s:/ Aaron Mills ScottAaron Mills Scotts: Kathleen G. PetersonNotary PublicState of MinnesotaMy Commission Expires 1/31/20155OPPENHEIMER: 2875189 v01 05/06/2011

CASE 0:09-cv-02040-JRT-JSM Document 109-1 Filed 05/06/11 Page 1 of 12

Scott Second Affidavit in Support of Motion for Attorney Fees

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