1

On May 27, 1997, Miller Drilling's claims were dismissed due to a settlement. 

DRILL SOUTH, INC., Plaintiff-Appellee-Cross-Appellant,

v.

INTERNATIONAL FIDELITY INS. CO., Defendant-Appellant-Cross-Appellee.

Drill South, Inc., Plaintiff-Counter Defendant-Appellee,

v.

International Fidelity Ins. Co., Defendant-Counter Claimant-Appellant.

Nos. 99-6100, 99-13590.

United States Court of Appeals,

Eleventh Circuit.

Dec. 7, 2000.

Appeals from the United States District Court for the Northern District of Alabama, No. 96-02682-CV-N-S,

Edwin L. Nelson, Judge.

Before COX, BLACK and FAY, Circuit Judges.

PER CURIAM:

This is a Miller Act payment bond action arising from a federal construction project ("the Project")

at the Redstone Arsenal in Huntsville, Alabama. International Fidelity Insurance Co. ("International

Fidelity"), a Miller Act surety, argues on appeal that the district court erred by granting judgment against it

solely on the basis of a default judgment entered against its principal, that the district court lacked personal

jurisdiction over its principal, and that the district court erred by granting an award of attorneys' fees. After

considering the parties' arguments and the record in this matter, we affirm the rulings of the district court.

In 1995, Enviro-Group, Inc. ("Enviro-Group"), an Indiana-based company, contracted with the

United States to perform construction work on the Project. International Fidelity issued payment and

performance bonds on behalf of Enviro-Group, as required by the Miller Act. Drill South, Inc. ("Drill South")

entered into a subcontract with Enviro-Group to perform certain drilling work, and, in turn, contracted with

Miller Drilling Co., Inc. ("Miller Drilling") to perform work on the project.

Enviro-Group defaulted on the contract, and Miller Drilling brought suit for unpaid invoices against

Drill South, Enviro-Group, and International Fidelity pursuant to the Miller Act and Alabama law.1

 Drill

South then cross-claimed against International Fidelity and Enviro-Group. International Fidelity answered
the cross-claim of Drill South and itself cross-claimed against Drill South and Enviro-Group. On February

20, 1997, Drill South filed a Motion for Default Judgment against Enviro-Group. In response to Drill South's

Motion for Default Judgment, International Fidelity stated that it took no position on a default judgment

against its principal Enviro-Group, provided that the default judgment was not deemed binding on

International Fidelity. Enviro-Group failed to respond, and the district court entered default judgment against

Enviro-Group in favor of Drill South on April 7, 1997. Several months after it entered default judgment

against Enviro-Group and while International Fidelity and Drill South had cross motions for summary

judgment pending, the district court concluded that International Fidelity, as surety for Enviro-Group, was

bound by the default judgment against Enviro-Group, and that the pending cross motions for summary

judgment were therefore moot. The district court entered Final Judgment against International Fidelity on

September 5, 1997. On January 27, 1999, the district court granted Drill South's Motion for Attorneys' Fees

and amended the September 5, 1997 Final Judgment to reflect the same. International Fidelity timely filed

a notice of appeal from that Judgment, and Drill South timely filed a notice of cross-appeal. While that

appeal was pending, International Fidelity filed a motion with the district court to set aside the judgment

pursuant to Fed.R.Civ.P. 60(b)(4), arguing that the judgment was void for lack of jurisdiction. The district

court denied the Rule 60(b)(4) motion on September 1, 1999, and International Fidelity timely filed a notice

of appeal from that order as well. On November 24, 1999, this Court consolidated the two appeals.

On appeal, International Fidelity argues that the District Court erred by granting judgment in favor

of Drill South solely on the basis that a default judgment had been entered in the same case on such claim

against International Fidelity's principal, Enviro-Group. Next, International Fidelity argues that the district

court erred in granting judgment against International Fidelity on the basis of the default judgment because

the district court lacked personal jurisdiction over Enviro-Group. Finally, International Fidelity argues that

the district court erred by granting Drill South an award of attorneys' fees and costs, and Drill South

cross-appeals, challenging the amount of attorneys' fees to which the district court determined that it was

entitled. For the reasons set forth more fully below, we find no error in the district court's orders of

September 5, 1997, January 27, 1999, and September 1, 1999.

 We turn first to International Fidelity's argument that it cannot be bound by the judgment against

Enviro-Group because default judgments against a bond principal are not binding on a co-defendant surety

actively defending in the same action. Whether the district court properly held that International Fidelity was

preclusively bound by the default judgment against its principal is a question of law, subject to plenary
 2

Under Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court is bound

by cases decided by the former Fifth Circuit before October 1, 1981. 

 3After Drill South filed its Motion for Default Judgment against Enviro-Group, the district court

ordered "any party wishing to be heard on the Motion" to submit a response. Despite the district court's

order, International Fidelity chose not to defend Enviro-Group against the default judgment and offered

no evidence on Enviro-Group's liability, apparently under the belief that such judgment would not be

binding on it. Next, the district court held a hearing in April of 1997 for arguments on "the issues of the

entry of default judgment against Enviro-Group, any damages arising therefrom, and whether such default

judgment is binding on International Fidelity as a surety." International Fidelity appeared at the hearing

and denied its liability for the default judgment, but failed to step in and defend the merits of the

judgment or damages. The district court also accepted a brief from International Fidelity, addressing

whether International Fidelity should be bound by the judgment against its principal. Finally, the district

court provided International Fidelity yet another opportunity to defend against the binding effect of the

default judgment when it allowed International Fidelity to argue the issue before the court at a motion

docket on August 29, 1997. 

review. See McDonald v. Hillsborough County School Board, 821 F.2d 1563, 1564 (11th Cir.1987).

Substantial dispute exists in the law as to whether a default judgment rendered against a principal is binding

upon the principal's surety. Nevertheless, the general rule that has emerged is that a surety is bound by any

judgment against its principal, default or otherwise, when the surety had full knowledge of the action against

the principal and an opportunity to defend. See Lake County ex rel. Baxley v. Massachusetts Bonding & Ins.

Co., 75 F.2d 6, 8 (5th Cir.1935)2

("[w]here it appears that the judgment against the [principal] was obtained

in a suit of which the surety had full knowledge, and which it had full opportunity to defend, the judgment

therein is not only evidence, but conclusive evidence, against every defense except that of fraud and collusion

in obtaining it."); United States ex rel. Vigilanti v. Pfeiffer-Neumeyer Const. Corp., 25 F.Supp. 403, 404

(E.D.N.Y.1938).

 In this action, it is clear from the record that International Fidelity had full knowledge of the potential

for the default judgment against Enviro-Group and possessed numerous opportunities to defend the ultimate

judgment. The record is replete with instances in which the district court afforded International Fidelity both

notice and opportunity to step in and defend the merits of Drill South's claims against Enviro-Group and the

extent of its liability.3

 It is also clear to this Court that International Fidelity had the legal right to step in and

defend Enviro-Group against the default judgment at every stage of the proceedings pursuant to its Agreement

of Indemnity with Enviro-Group. Under the terms of the Agreement, International Fidelity was designated

Enviro-Group's "attorney-in-fact", giving International Fidelity the "right to adjust, settle, or compromise any
 4

The Agreement of Indemnity appoints International Fidelity as the attorney-in-fact for Enviro-Group

as follows:

[Enviro-Group] hereby irrevocably nominate[s], constitute[s], appoint[s] and designate[s]

[International Fidelity] as their attorney-in-fact with the right, but not the obligation, ... in

the name of [Enviro-Group] to make, execute, and deliver any and all additional or other

assignments, documents, or papers deemed necessary and proper by [International

Fidelity] in order to give ... the full protection intended to be herein given to

[International Fidelity] under all other provisions of this Agreement. [Enviro-Group]

hereby ratify[ies], and confirm[s] all acts and actions taken and done by [International

Fidelity] as such attorney-in-fact.

Agreement of Indemnity at ¶ 18. 

 5Our decision that International Fidelity is bound by the default judgment against Enviro-Group is the

same under Alabama substantive law. Under Alabama law, a surety is conclusively bound by a default

judgment against a principal if it is a privy of the principal or if it is a party to the suit in which judgment

is rendered. See Firemen's Ins. Co. v. McMillan, 29 Ala. 147, 167-68 (Ala.1856). 

 6Contrary to International Fidelity's argument, the simple fact that International Fidelity had asserted a

cross-claim against Enviro-Group does not affect International Fidelity's "right" to step in and defend

Enviro-Group as its attorney-in-fact. We do not believe that there is anything unusual about an insurance

company or surety defending a principal or insured against suits by third parties, while simultaneously

maintaining an action against the insured or principal, or taking such action under a "reservation of

rights." 

claim, demand, suit or judgment upon the [payment bond]." Agreement of Indemnity, ¶ 13.4

 We agree with

the district court that because International Fidelity had the right, and therefore the opportunity, to defend

Enviro-Group as its surety and attorney-in-fact, International Fidelity should not be permitted to stand back

and allow a judgment to be taken setting the amount of recovery against its principal without similarly being

bound by the judgment.5

To the extent that International Fidelity argues that it had no obligation to defend the action against

Enviro-Group, we are not persuaded. We believe the issue is not whether the Agreement of Indemnity

imposed an obligation on International Fidelity to defend Enviro-Group, but whether it conferred a right to

defend. The law requires only that a surety have notice and an opportunity to defend before it is bound by

a judgment against its principal. We believe International Fidelity had this right and opportunity, and simply

chose, for whatever reason, not to exercise its right.6

International Fidelity argues, however, that when a surety and principal are sued in the same action,

and the surety answers and defends on its own behalf, the surety is not bound by a default judgment entered

against the surety's principal. Although we recognize the existence of authority supporting International

Fidelity's position, those cases are not binding on this Court; nor do we find their reasoning persuasive. See

United States ex. rel. Fidelity Nat. Bank v. Rundle, 107 F. 227, 229 (9th Cir.1901); Pfeiffer-Neumeyer Const.
 7

Other courts have reached this conclusion under similar facts. See First Mobile Home Corp. v. Little,

298 So.2d 676, 682 (Miss.1974)(surety bound by default judgment against principal when sued in same

suit because had same right to defend as its principal); Massachusetts Bonding & Ins. Co. v. Central

Finance Corp., 124 Colo. 379, 237 P.2d 1079 (1951)(default judgment against principal is conclusive on

surety); Home Ins. Co. of New York v. Savage, 231 Mo.App. 569, 103 S.W.2d 900, 901-02 (1937); 

Charleston & W.C. Ry. Co. v. Lassiter & Co., 208 N.C. 209, 179 S.E. 879, 881-82 (1935). 

 8Moreover, we agree with the district court that the Supreme Court's holding in Frow v. De La Vega,

15 Wall. 552, 82 U.S. 552, 21 L.Ed. 60 (1872), is inapplicable to this case in light of the conclusion that

International Fidelity is conclusively bound by the default judgment against Enviro-Group. Frow held

that where multiple defendants are jointly liable, it would be "incongruous" for judgment to be entered

against a defaulting defendant prior to the decision on the merits as to the remaining defendants. See id.

at 554. Nevertheless, Frow has been interpreted to apply only when there is a risk of inconsistent

adjudications. See In re Uranium Antitrust Litigation, 617 F.2d 1248, 1257-58 (7th Cir.1980). See also

Wright, Miller, & Kane, Federal Practice and Procedure; Civil 2d § 2690 (1983-1997). Because we have

determined that International Fidelity was conclusively bound by the default judgment entered against its

principal, there was no risk of inconsistent adjudications and the rationale behind Frow is not implicated. 

Corp., 25 F.Supp. at 405 (principal's silence and failure to appear cannot be shown in evidence against

sureties actively defending in same action); North Jersey Sav. and Loan Assn. v. Wright, Egan, & Assoc.,

No. 85-4211, January 13, 1987 (unpublished opinion) (E.D.Pa.1987)(default judgment against principal is

not binding on surety defending in same action); Gearhart v. Pierce Enterprises, Inc., 105 Nev. 517, 779

P.2d 93, 95 (1989)(default judgment against principal not binding on surety where surety was not responsible

for principal's conduct causing default and had not assumed principal's legal defense, notwithstanding surety's

participation in suit as principal's co-defendant).

 We believe that the general rule that a surety is bound by a judgment entered against its principal

when the surety had both notice and opportunity to defend applies whether the principal and surety are sued

in the same action or in separate actions.7

 As was stated by the district court in its September 5, 1997

Memorandum of Opinion:

It would be an anomaly to conclude that a surety can be held liable under the general rule for

standing idly by while its principal suffers an adverse judgment when the judgment is rendered in

an action where the surety is not a party, and in the same breadth conclude that the surety can stand

idly by, without liability, and allow a default judgment to be rendered against its principal merely

because the surety was a co-defendant to the action. In the former case, the surety is afforded much

less opportunity to defend its interests than in the latter, where it is already a party, has full

knowledge of the proceedings, and can freely oppose the judgment against its principal.

Accordingly, we find no error in the district court's determination that International Fidelity is bound

by the default judgment taken in the same action against its principal, Enviro-Group.8

We turn now to International Fidelity's argument that the district court erred in granting judgment

against International Fidelity on the basis of the default judgment against Enviro-Group because the district

court lacked personal jurisdiction over Enviro-Group. International Fidelity argues that Enviro-Group was
 9

Although we do not decide the issue today, it is not entirely clear that International Fidelity has the

right to raise the argument that the district court lacked personal jurisdiction over Enviro-Group. Lack of

personal jurisdiction is arguably a personal defense that can only be raised by the party over whom

jurisdiction is lacking. See Leroy v. Great Western United Corp., 443 U.S. 173, 180, 99 S.Ct. 2710, 2715,

61 L.Ed.2d 464 (1979); Hardaway Co. v. Amwest Surety Ins. Co., 15 F.3d 172, 174 (11th

Cir.1994)(surety may assert all defenses that would be available to principal with the exception of

personal defenses). 

 10Both the Alabama Rules of Civil Procedure and the Federal Rules of Civil Procedure contemplate

service upon a corporation through its "officers" or "agents." See Fed.R.Civ.P. 4(h)(1); Ala. R. Civ. P.

4(c)(6). 

 11The summons at issue indicated that it was a cross-claim summons and was accompanied by a

cross-claim which identified Enviro-Group, not Robert Woodward, as the cross-defendant. The case

caption also identified Enviro-Group as the defendant. In addition, the summons warned that a default

might be taken if Enviro-Group failed to appear. 

never properly served in this action, and therefore the district court never obtained personal jurisdiction over

Enviro-Group. As such, International Fidelity believes that the default judgment entered against EnviroGroup is void and cannot serve as a basis to bind International Fidelity.9

 The summons issued for Enviro-Group states that it is directed to: "Robert G. Woodward, Jr.,

President of Enviro-Group, Inc." Mr. Woodward received the summons via certified mail and accepted and

signed for it in December 1996. International Fidelity complains that this amounted to service on Mr.

Woodward in his individual capacity and is insufficient to confer personal jurisdiction over Enviro-Group.

We disagree. Under both the Federal Rules and Alabama Rules of Civil Procedure, we believe the summons

described above was sufficient to confer personal jurisdiction over Enviro-Group.10

 The Federal Rules of Civil Procedure contemplate that a court may have personal jurisdiction over

a defendant served despite imperfect service of process. See Sanderford v. Prudential Ins. Co. of America,

902 F.2d 897 (11th Cir.1990). Thus, even a finding that the summons served upon Enviro-Group through

Mr. Woodward was technically defective would not necessarily mean that the district court lacked personal

jurisdiction over Enviro-Group or that the default judgment against Enviro-Group is void. If a summons is

in substantial compliance with the Federal Rules and a defendant has not been prejudiced by a defect in the

summons, a defendant waives the insufficiency of process defense by not asserting it prior to the entry of

default judgment. See id. at 900. There is nothing in the record to suggest that either Enviro-Group or

International Fidelity lacked notice that Drill South's claims were against Enviro-Group rather than Robert

Woodward, or that either was in any way prejudiced by the allegedly "defective" summons.11 As such, the

district court did not err in concluding that Enviro-Group was served in a manner substantially complying
 12Moreover, like the district court, we believe that International Fidelity's argument that service on

Enviro-Group was improper and that no personal jurisdiction attached should have been raised long ago. 

International Fidelity knew or should have known of the alleged "defects" in the summons no later than

February 18, 1997, when Drill South's Motion for Default Judgment, with a copy of the summons

attached, was served on International Fidelity. Despite having received a copy of the summons in

February 1997, International Fidelity did not raise its defective service argument until twenty-six months

after the entry of default judgment against Enviro-Group; twenty-one months after the entry of final

judgment against International Fidelity; and five months after entry of the amended final judgment. 

with Fed. R. Civ. P. 4 or in its decision that it had personal jurisdiction over Enviro-Group.

 Contrary to International Fidelity's argument, the result is not different under the Alabama Rules of

Civil Procedure. International Fidelity argues that service requirements under Alabama law are more

stringent than the Federal Rules and that the district court in this matter improperly presumed that Robert

Woodward was an agent of Enviro-Group who could accept service on behalf of the company.

The 1992 Committee Comments to Rule 4 of the Alabama Rules of Civil Procedure caution that no

presumption of agency should be indulged in with respect to service and that "courts should be vigilant to

protect the rights of defendants when default judgments are entered on the basis of service upon an agent of

a defendant." In addition, the Comments provide that "the court should be satisfied that the person upon

whom service was attempted was in fact the authorized agent of the defendant before refusing to grant relief

from a default judgment." See also Hoffman et al. v. Alabama Distillery & Feeding Co., 124 Ala. 542, 27

So. 485 (1900)(indicating that under Alabama law, there must be some proof of proper connection between

the individual served and the corporation in order to sustain a judgment against that corporation). We believe

that the district court did properly satisfy itself that Robert Woodward was authorized to accept service on

behalf of Enviro-Group. The district court accepted evidentiary submissions from the parties on the issue and

ultimately determined that Mr. Woodward was an officer, agent, and owner of Enviro-Group at the time of

service. The district court's determination that Robert Woodward could properly accept service on behalf of

Enviro-Group is amply supported by the record and we find no error.12

Finally, we turn to the parties' arguments pertaining to attorneys' fees. International Fidelity argues

that the district court erred in granting Drill South an award of fees and costs because Drill South did not

plead its entitlement to fees in its cross-claim against International Fidelity. Drill South cross-appeals,

arguing that the district court properly awarded it fees, but should be required to recalculate the amount of

fees due to the district court's use of an improper standard in determining the amount of fees to which Drill

South was entitled, the district court's failure to consider International Fidelity's "Stalingrad Defense" tactics,
 13Moreover, that Drill South did not specifically plead its entitlement to fees in its cross-claim against

International Fidelity is not necessarily determinative. We have held under similar facts that a district

court has discretion to award the prevailing party attorneys' fees pursuant to a contractual provision,

despite that party's failure to plead fees in its pleadings. See Capital Asset Research Corp. v. Finnegan,

216 F.3d 1268, 1270-72 (citing Engel v. Teleprompter Corp., 732 F.2d 1238 (5th Cir.1984)). See also

Klarman v. Santini, 503 F.2d 29, 36 (2d Cir.1974)(rejecting argument that a party's failure to specifically

request attorneys' fees in pleadings is in itself a bar to recovery), cert. denied, 419 U.S. 1110, 95 S.Ct.

785, 42 L.Ed.2d 807 (1975). 

and the district court's erroneous findings of fact concerning the reasonableness of the hours Drill South

expended in this matter.

 District courts have broad discretion in awarding attorneys' fees, and an award of such fees will

normally be set aside only for abuse of discretion. See American Civil Liberties Union of Georgia v. Barnes,

168 F.3d 423, 427 (11th Cir.1999); In re Hillsborough Holdings Corp., 127 F.3d 1398, 1401 (11th Cir.1997);

ARP Films, Inc. v. Marvel Entertainment Group, Inc., 952 F.2d 643, 651 (2d Cir.1991); Lerman v. Flynt

Distrib. Co., 789 F.2d 164, 166 (2d Cir.), cert. denied, 479 U.S. 932, 107 S.Ct. 404, 93 L.Ed.2d 357 (1986).

"An abuse of discretion occurs if the judge fails to apply the proper legal standard or to follow proper

procedures in making the determination or bases an award [or a denial] upon findings of fact that are clearly

erroneous." United States v. Gilbert, 198 F.3d 1293, 1298 (11th Cir.1999).

 After considering the parties arguments and the record, we do not believe that the district court

abused its discretion in its decision to award Drill South fees despite its apparent failure to plead its

entitlement to fees in its cross-claim against International Fidelity. The pre-trial order in this action clearly

stated Drill South's intent to recover attorneys' fees from International Fidelity.13 See State Treasurer of the

State of Michigan v. Barry, 168 F.3d 8, 9-10 (11th Cir.1999)(pretrial order supercedes prior pleadings);

Insurance Co. of North America v. M/V Ocean Lynx, 901 F.2d 934, 941 (11th Cir.1990). Nor do we find that

the district court erred in its determination of the proper amount of fees to be awarded to Drill South.

Accordingly, we affirm the district court's decisions pertaining to attorneys' fees in all respects.

AFFIRMED.