FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT DEC 7 2000 THOMAS K. KAHN CLERK [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 99-6100

_______________________ D. C. Docket No. 96-CV-2682 DRILL SOUTH, INC., Plaintiff-Appellee-Cross-Appellant,

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

________________________ No. 99-13590

_______________________ D.C. Docket No. 96-02682-CV-N-S DRILL SOUTH, INC., Plaintiff-Counter Defendant-Appellee,

versus INTERNATIONAL FIDELITY INS. CO., Defendant-Counter Claimant-Appellant.

________________________ Appeals from the United States District Court for the Northern District of Alabama

_________________________ (December 7, 2000)2 Before COX, BLACK and FAY, Circuit Judges.
PER CURIAM: This is a Miller Act payment bond acti on arising from a federal construction project (“the Project”) at the Redstone Arse nal in Huntsville, Alabama. International Fidelity Insurance Co. (“International Fide lity”), a Miller Act surety, argues on appeal that the district court erred by granting j udgment 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 partie s’ 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 a nd performance bonds on behalf of EnviroGroup, 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 contr act, and Miller Drilling brought suit for unpaid invoices against Drill South, Enviro-Group, and International Fidelity pursuant1 On May 27, 1997, Miller Drilling’s claims were dismissed due to a settlement. 3 to the Miller Act and Alabama law. 1 Drill South then cross-claimed against International Fidelity and E nviro-Group. International Fidelity answered the crossclaim 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 t ook no position on a default judgment against its principal Enviro-Group, provided that th e default judgment was not deemed binding on International Fidelity. Enviro-Group fa iled to respond, and the district court entered default judgment against Enviro-Group in favor of Drill South on April 7, 1997. Several months afte r it entered default judgment against Enviro-Group and while International Fidelity and Dr ill 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 judgmen t against Enviro-Group, and that the pending cross motions for summary judgment we re therefore moot. The district court entered Final Judgment against Internati onal Fidelity on September 5, 1997. On January 27, 1999, the district court grante d Drill South’s Motion for Attorneys’ Fees and amended the September 5, 1997 Final Judgm ent to reflect the same. International Fidelity timely filed a notice of appeal from that Judgment, and Drill South timely4 filed a notice of cross-appeal. While thatappeal was pending, International Fidelity filed a motion with the district court to se t aside the judgment pursuant to Fed. R. Civ. P. 60(b)(4), arguing that the judgment was voi d 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 th at 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 ag ainst International Fidelity’s principal, Enviro-Group. Next, International Fidelity argues that the district court erred in granting judgment against International Fide lity on the basis of the default judgment because the district court lacked persona l 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 di strict 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 de fault judgments against a bond principal2 Under Bonner v. City of Pritchard , 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. 5 are not binding on a co-defendant surety actively defending in the same action. Whether the district court properly held th at International Fidelity was preclusively bound by the default judgment against its principal is a question of law, subject to plenary review. See McDonald v. Hillsborough County School Board , 821 F.2d 1563, 1564 (11th Cir. 1987). Substantial dispute exis ts in the law as to whether a default judgment rendered against a principal is binding upon the principal’s surety. Nevertheless, the general ru le 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 princi pal and an opportunity to defend. See Lake County ex rel. Baxley v. Ma ssachusetts 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 know ledge, and which it had full opportunity to defend, the judgment therein is not only ev idence, but conclusive evidence, against every defense except that of fraud and collusi on in obtaining it.”); United States ex rel. Vigilanti v. Pfeiffer-N eumeyer Const. Corp ., 25 F. Supp. 403, 404 (E.D.N.Y. 1938).3 After 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, Internationa l 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 inApril of 1997 for arguments on “the issues of the entry of default judgment against EnviroGroup, 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 brie f 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. 6 In this action, it is clear from the reco rd 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 districtcourt afforded Inte rnational Fidelity both notice and opportunity to step in and defend the merits of Drill South’s claims against Enviro-Group and the ex tent 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 th e proceedings pursuant to its Agreement of Indemnity with Enviro-Group. Under the terms of the Agreement, International Fidelity was designated Envi ro-Group’s “attorney-in-fact”, giving International Fidelity the “right to adjust, settle, or compromise any claim, demand, suit or4 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-G roup] hereby ratify[ies], and confirm[s]all acts and actions taken and done by [International Fidelity] as such attorney-infact. Agreement of Indemnity at ¶ 18.

5 Our decision that International Fidelity is bound by the default judgment against EnviroGroup 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 Fireman’s Ins. Co. v. McMillan , 29 Ala. 147, 167- 68 (Ala. 1856). 7 judgment upon the [payment bond].” Agreement of Indemnity, ¶ 13. 4 We agree with the district court that because Internati onal Fidelity had the right, and therefore the opportunity, to defend Enviro-Group as its su rety 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 Fi delity argues that it had no obligation to defend the action against Enviro-Group, we ar e not persuaded. We believe the issue is not whether the Agreement of Indemnityimposed an obligation on International6 Contrary 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.” 8 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 de fend before it is bound by a judgment against its princi pal. We believe International Fidelity had this right and opportunity, and simply chose, for what ever 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 ag ainst 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. Corp. , 25 F. Supp. at 405 (principal’s silence and failure to appear cannot be shown in ev idence against sureties actively defending in same action); North Jersey Sav. and Loan Assn. v. Wri ght, Egan, & Assoc. , No. 85- 4211 January 13, 1987 (unpublished opinion) (E.D. Pa. 1987)(default judgment against principal is not binding on surety de fending in same action); Gearhart v. Pierce Enterprises, Inc. , 779 P.2d 93, 95 (Nev. 1989)(default judgment against principal not7 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 ., 237 P.2d 1079 (Col. 1951)(default judgment against principal is conclusive on surety); Home Ins. Co. of New York v. Savage , 103 SW 2d 900, 901-02 (Mo. Ct. App. 1937); Charleston & W.C.RY. Co. v. Lassiter & Co. , 179 SE 879, 881-82 (N.C. 1935). 9 binding on surety where surety was not re sponsible for principal’s conduct causing default and had not assumed principal’s legal defense, notw ithstanding surety’s participation in suit as principal’s co-defendant). We believe that the gene ral rule that a surety is bound by a judgment entered against its principal when the surety had both notice and opportunityto defend applies whether the principal and surety are sued inthe 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 wh ile its principal suffers an adverse judgment when the judgment is rende red 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 th e surety was a co-defendant to the action. In the former case, the su rety is afforded much less opportunity to defend its interests than in the la tter, where it is already a party, has full knowledge of the proceedings, and can freely oppose the judgment against its principal.8 Moreover, we agree with the district court that the Supreme Court’s holding in Frow v. De la Vega , 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 Frowis not implicated.

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 (1979); Hardaway Co. v. Amwest Surety Ins. 10 Accordingly, we find no e rror in the district c ourt’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 Internati onal Fidelity’s argument that the district court erred in granting judgment against Internationa l Fidelity on the basis of the default judgment against Enviro-Group because the di strict court lacked personal jurisdiction over Enviro-Group. International Fide lity argues that Enviro-Group was never properly served in this action, and therefor e the district court never obtained personal jurisdiction over Enviro-Group. As such, International Fidelity believes that the default judgment entered against Enviro-Gr oup is void and cannot serve as a basis to bind International Fidelity. 9Co. , 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).

10 Both 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). 11 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 accepte d and signed for it in December 1996. International Fidelity complains that th is amounted to service on Mr. Woodward in his individual capacity and is insufficient to confer personal juri sdiction over EnviroGroup. We disagree. Unde r both the Federal Rules and Alabama Rules of Civil Procedure, we believe the summons describe d 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 de spite 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 serv ed upon Enviro-Group through Mr. Woodward was technically defective would not necessar ily mean that the district court lacked personal jurisdiction over Envi ro-Group or that the default judgment against EnviroGroup is void. If a summons is in substan tial compliance with the Federal Rules and a defendant has not been prejudiced by a de fect in the summons, a defendant waives11 The 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. 12 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 reco rd to suggest that either EnviroGroup or International Fidelity lacked noti ce that Drill South’s claims were against Enviro-Group rather than Robe rt 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 with Fed. R. Civ. P 4 or in its decision that it had personal jurisd iction over Enviro-Group. Contrary to International Fidelity’s ar gument, the result is not different under the Alabama Rules of Civil Procedure. In ternational Fidelity argues that service requirements under Alabama law are more st ringent than the Federal Rules and that the district court in this matter improperl y 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 ag ency 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 person12 Moreover, 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 en try of final judgment against International Fidelity; and five months after entry of the amended final judgment. 13 upon whom service was attempted was in fact the authorized agent of the defendant before refusing to grant relie f from a default judgment.” See also Hoffman et al. v. Alabama Distillery & Feeding Co. , 27 So. 485 (Ala. 1900)(indicating that under Alabama law, there must be some proof of proper connec tion between the individual served and the corporation inorder to sustain a judgment against that corporation). We believe that the district court did prope rly 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 determin ation 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’ argum ents pertaining to attorneys’ fees. International Fidelity argues that the district court erred in granting Drill South an14 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 wa s entitled, the district court’s failure to consider International Fidelity’s “Stalingrad Defense” tactics, 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 inawarding attorneys’ fees, and an award of such fees will normally be set as ide 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 a buse 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 de nial] upon findings of fact that are clearly erroneous.” United States v. Gilbert , 198 F.3d 1293, 1298 (11th Cir. 1999).13 Moreover, that Drill South did not specifically plead its entitlement to fees in its crossclaim 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 (1975). 15 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 entitleme nt 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 fi nd that the districtcourt 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