Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

THE ROZZI COMPANY, INC., :

:

Plaintiff, : Case No. 1:24-cv-599

:

vs. : Judge Jeffery P. Hopkins

:

FIREWORKS BY GRUCCI, INC., et al.,

:

:

Defendants.

:

OPINION AND ORDER

Plaintiff The Rozzi Company (“Rozzi”) brings this action against Defendants

Fireworks By Grucci, Inc. and Pyrotechnique (collectively, “Defendants”). To date,

Defendants have failed to appear or otherwise defend against this action. For the reasons

stated below, Rozzi’s Renewed Motion for Default Judgment (Doc. 10) is GRANTED.

I. LAW & ANALYSIS

Often misunderstood by parties and, on occasion, the attorneys who represent them is

the two-step sequential process for obtaining a default judgment. See Allied Consol. Enters v.

Aladwan, No. 2:20-cv-4561, 2021 WL 1572291, at *2 (S.D. Ohio April 22, 2021). First, a party

must apply for an entry of default from the clerk of the court. See Fed. R. Civ. P. 55(a) (“When

a party against whom a judgment is sought has failed to plead or otherwise defend, and that

failure is shown by affidavit or otherwise, the clerk must enter the party’s default.”). Then,

after a party obtains an entry of default, that party must make a request for a default judgment

to be entered. Fed. R. Civ. P. 55(b). This can happen in one of two ways: by the clerk or by

the court.

If the party’s claim is for a sum certain or a sum that may be ascertained by

computation, the clerk may enter default judgment. Fed. R. Civ. P. 55(b). In any other case,

the party must seek default judgment from the court. Id. When considering an application for

default judgment, the court will accept the complaint’s factual allegations as true but must

assess whether the factual allegations are legally sufficient to state the alleged cause of

action. The moving party may prove the existence of damages through detailed affidavits or

documentary evidence, or at an evidentiary hearing. Arthur v. Robert James Assocs. Asset Mgmt.,

No. 3:11-cv-460, 2012 U.S. Dist. LEXIS 47240, at *3 (S.D. Ohio Apr. 13, 2012).

For default judgment to be entered by a district court, the court must be satisfied that

it possesses both subject matter and personal jurisdiction over the nonresponsive

party. Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th Cir.

2009) (“[F]ederal courts have a duty to consider their subject matter jurisdiction in regard to

every case.”); Citizens Bank v. Parnes, 376 F. App’x 496, 501 (6th Cir. 2010) (“Personal

jurisdiction over a defendant is a threshold issue that must be present to support any

subsequent order of the district court, including entry of the default judgment.”); Kuhlman v.

McDonnell, No. 1:20-cv-510, 2022 WL 407240, at *2 (S.D. Ohio Feb. 10, 2022). If the

jurisdictional prerequisite is met, then the court must weigh the seven factors articulated by

the Sixth Circuit in Russell v. City of Farmington Hills, 34 F. App’x 196, 198 (6th Cir. 2002), for

determining whether a default judgment is warranted. Those factors are:

(1) possible prejudice to the plaintiff; (2) the merits of the claims; (3) the sufficiency of

the complaint; (4) the amount of money at stake; (5) possible disputed material facts;

(6) whether the default was due to excusable neglect; and (7) the preference for

decisions on the merits.

See also Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986).

A. Plaintiff is entitled to default judgment.

As a threshold matter, Rozzi’s Complaint properly invokes this Court’s jurisdiction.

Subject matter jurisdiction is proper under 28 U.S.C. § 1332(a) because Rozzi is a citizen of

Ohio and Defendants are citizens of New York and Virginia respectively. Compl., Doc. 1, ¶¶

5–7; 28 U.S.C. § 1332(a)(2). Rozzi alleges that Defendants owe more than $148,000.00 in

damages. Compl., Doc. 1, ¶ 4. Thus, Rozzi alleges an amount in controversy in excess of

$75,000, exclusive of interest and costs. Personal jurisdiction is also proper because

Defendants transact business in Ohio. Compl., Doc. 1, ¶ 4; Ohio Rev. Code § 2307.382(A)(1).

Having established that this Court has both subject matter jurisdiction and personal

jurisdiction over Defendants, the Court will now weigh the factors set forth in Russell—

starting first with whether Rozzi has asserted sufficient and meritorious claims—the second

and third Russell factors, before turning to the remaining factors.

1. Sufficient and Meritorious Claims

The second and third factors in Russell relate to the merits of Rozzi’s claims and the

sufficiency of Rozzi’s Complaint. Like other courts in this District, this Court will consider

these factors together. Rozzi alleges four claims in its Complaint: (1) civil conversion, (2)

unjust enrichment, (3) breach of contract, and (4) injunctive relief. Compl., Doc. 1, ¶¶ 16–29.

Viewing the factual allegations in the Complaint as true, the Court will address each

claim in turn.

a. Civil Conversion

Rozzi alleges a claim for civil conversion against Defendants Grucci and

Pyrotechnique. Compl., Doc. 1, ¶¶ 16–20. Under Ohio law, conversion “is the wrongful

exercise of dominion over property in exclusion of the right of the owner, or withholding it

from his possession under a claim inconsistent with his rights.” Zacchini v. Scripps-Howard

Broadcasting Co., 47 Ohio St.2d 224, 226 (1976), rev’d on other grounds, 433 U.S. 562 (1977). To

prevail on its conversion claim, Rozzi must establish: “‘(1) [its] ownership or right to

possession of the property at the time of the conversion; (2) [Defendant’s] conversion by a

wrongful act or disposition of [Rozzi’s] property rights; and (3) damages.’” Academic Imaging,

LLC v. Soterion Corp., 352 Fed. App’x. 59, 67 (6th Cir. 2009) (quoting Dream Makers v. Marshek,

2002-Ohio-7069, ¶ 19 (8th Dist.)). Rozzi’s claim for conversion is premised on the unlawful

retention of Rozzi’s fireworks, meaning that Rozzi must establish that (1) it demanded the

return of the fireworks from Defendants after Defendants exerted dominion and control over

the fireworks, and (2) that Defendants refused to deliver the fireworks to Rozzi. Barnes v. First

Am. Title Ins. Co., No. 1:06-cv-574, 2006 WL 2265553, at *8 (N.D. Ohio Aug. 8, 2006) (citing

Tabar v. Charlie’s Towing Serv., Inc., 97 Ohio App. 3d 423, 427–28 (8th Dist. 1994)). “The

measure of damages in a conversion action is the value of the converted property at the time

it was converted.” Tabar, 97 Ohio App. 3d at 428 (citation omitted).

First, the Complaint alleges that Rozzi is the rightful owner of the fireworks. Compl.,

Doc. 1, ¶ 17. Second, while the Complaint states that Defendant Grucci obtained the

fireworks legitimately, Grucci wrongfully possessed the fireworks after not making the

fireworks available for pickup by Rozzi after failing to pay for them. Id. Third, Rozzi alleges

that Grucci acted as an agent for Defendant Pyrotechnique to the extent that Pyrotechnique

has any or all of the fireworks. Id. ¶ 18. Fourth, Rozzi alleges that it suffered damages in the

cost of the lost fireworks. Id. ¶ 19. Further, Rozzi alleges that it made “numerous efforts to

retrieve the fireworks,” but Defendant Grucci completely stopped communicating with

Rozzi. Id. ¶ 13.

Under the circumstances, the Court finds that Rozzi has stated a sufficient and

meritorious claim for civil conversion.

b. Breach of Contract

Rozzi separately alleges a claim for breach of contract against Grucci. Compl., Doc.

1, ¶¶ 24–27. Under Ohio law, a plaintiff states a claim for breach of contract where there is:

(1) the existence of a contract; (2) performance by the plaintiff; (3) breach by the defendant;

and (4) damage or loss to the plaintiff as a result of the breach. V & M Star Steel v. Centimark

Corp., 678 F.3d 459, 465 (6th Cir. 2012) (citations omitted).

It is well established that there are three categories of contracts under Ohio law:

express, implied-in-fact, and implied-in-law. Legros v. Tarr, 44 Ohio St.3d 1, 6 (1989). In

express contracts, assent to the terms of the contract is actually expressed in the form of an

offer and acceptance. Lucas v. Costantini, 13 Ohio App.3d 367, 368 (12th Dist. 1983). On the

other hand, an “implied contract is a contract inferred by a court from the circumstances

surrounding the transaction, making a reasonable or necessary assumption that a contract

exists between the parties by tacit understanding.” Hollis Towing v. Greene, 2003-Ohio-5962,

¶ 8 (2nd Dist. 2003). The “[e]ssential elements of a contract include an offer, acceptance,

consideration, [and] a manifestation of mutual assent.” Kostelnik v. Helper, 2002-Ohio-2985,

¶ 16 (2002).

Here, Rozzi alleges that “Defendant Grucci had a contract to pay Rozzi for the

contract value of the fireworks, $148,200.00, upon condition that it take a reasonable time to

test said fireworks.” Compl., Doc. 1, ¶ 25. To further support this claim, Rozzi attaches email

correspondence and an invoice bill with an attached check for partial payment of the invoice.

Docs. 1-1, 1-2, 1-3. The invoice bill is a document on Rozzi’s letterhead purporting to show

Grucci’s outstanding account statement balance as of April 1, 2022. Doc. 1-1. There are no

terms in the invoice, nor is there any offer or acceptance. The invoice is simply a bill of the

amount that is allegedly owed by Grucci to Rozzi. Id. The Court is therefore reluctant to

conclude that Rozzi has adequately alleged breach of an express contract because the account

statement upon which Rozzi relies for its breach-of-contract claim has no explicit indication

that there was an “an offer, acceptance, consideration, [and] a manifestation of mutual

assent.” Kostelnik, 2002-Ohio-2985, ¶ 16.

Nonetheless, the Court finds that Rozzi has sufficiently and meritoriously alleged a

breach of an implied contract between the parties. “To establish a contract implied-in-fact, a

plaintiff must demonstrate that the circumstances surrounding the parties’ transaction make

it reasonably certain that an agreement was intended.” Stepp v. Freeman, 119 Ohio App.3d 68,

74 (2d Dist. 1997). One of the “most obvious example[s]” of an implied contract occurs where

“recovery is sought for services rendered or materials furnished[,] and the circumstances are

such that people expect to be paid and pay for such conduct.” Lucas, 13 Ohio App. 3d at 369.

Here, Rozzi alleges that Defendant Grucci ordered $148,934.85 worth of fireworks from

Rozzi. Compl., Doc. 1, ¶ 8. Grucci also tendered a check dated April 21, 2023 for fifty

thousand dollars; however, Grucci asked Rozzi to not cash the check until the quality of the

fireworks was investigated. Id. ¶¶ 9–10; Doc. 1-1.1 Rozzi claims that “[a]fter a reasonable time

expired, Defendant Grucci neither paid for nor arranged for the return of said fireworks.”

Compl., Doc. 1, ¶ 26. On this record, the Court finds that Rozzi has sufficiently stated a

1 There are no facts in the Complaint that confirm whether the check was cashed by Rozzi. See Compl., Doc.1.

However, the record clearly demonstrates that the check tendered by Grucci was for $50,000.00, which is

substantially less than the amount of fireworks ordered, which totaled $148.934.85. Even if Grucci tendered

partial payment, Grucci remains in breach.

meritorious claim for breach of contract predicated on Grucci’s failure to pay for the materials

furnished, i.e., fireworks, currently in dispute.

c. Unjust Enrichment

Rozzi’s next claim is for unjust enrichment. Compl., Doc. 1, ¶¶ 20–23. Unjust

enrichment has long been held to be a quasi-contract claim. Having established that Rozzi

has set forth a sufficient and meritorious claim for breach of contract, this Court declines to

enter default judgment on Rozzi’s unjust enrichment claim because this claim is now

duplicative. Bihn v. Fifth Third Mortg. Co., 980 F. Supp. 2d 892, 904 (S.D. Ohio 2013); see Ryan

v. Rival Mfg. Co., 1st Dist. Hamilton No. C-810032, 1981 WL 10160, *1 (Dec. 16, 1981) (“It

is clearly the law in Ohio that an equitable action in quasi-contract for unjust enrichment will

not lie when the subject matter of that claim is covered by an express contract or a contract

implied in fact.”).

d. Injunctive Relief

The final claim that Rozzi asserts in the Complaint is one seeking injunctive relief.

Compl., Doc. 1, ¶¶ 28–29. “An injunction is a form of equitable relief available to avoid an

irreparable injury. It is not a claim unto itself.” Baglama v. MWV Consumer & Off. Prods., No.

3:13-cv-276, 2014 U.S. Dist. LEXIS 156648, at *12 (S.D. Ohio Nov. 5, 2014) (citation

omitted). Given the Court’s ruling related to the conversion and contract claims, the need for

injunctive relief dissipates and no default judgment on this claim will obtain.

2. Prejudice to the Plaintiff

Having found that Rozzi has stated sufficient and meritorious claims, the Court must

next determine whether Rozzi would suffer prejudice if its motion were denied. Rozzi

initiated this lawsuit in October 2024, and the events underlying the Complaint occurred in

2022. Compl., Doc. 1. Taking its allegations as true, this would mean that it has been more

than two years since Rozzi was due to be fully compensated for the fireworks sent to

Defendants. Defendants have made no effort to appear or defend this lawsuit. To deny

Rozzi’s Motion would “render [its] effort at a civil resolution futile, while rewarding

[Defendants’] avoidance of this litigation.” Evans Adhesive Corp. v. Golden State Adhesives, Inc.,

No. 2:23-cv-1801, 2023 WL 7130676, at *3 (S.D. Ohio Oct. 30, 2023). For these reasons, the

Court finds that this factor supports default judgment.

3. Amount of Money at Stake

Next, the Court considers the amount of money at stake. Rozzi seeks $148,200.00

from Defendants, jointly and severally, as well as postjudgment interest and costs. Compl.,

Doc. 1 ¶¶ 21, 25; Doc. 10, PageID 45. The amount Rozzi seeks represents the total that

Defendants have failed to pay Rozzi for the price of the fireworks that were sent to and

received by Defendants. Doc. 10, PageID 45. When considering this amount and Rozzi’s

requests for postjudgment interest and costs, Rozzi’s total award is likely to be within the

range of awards in federal cases. See e.g., Iron Workers Dist. Council of S. Ohio & Vicinity Ben Tr.

V. Hoosier Steel, Inc., No 3:11-cv-458, 2012 WL 1122809, at *4 (S.D. Ohio Apr. 3, 2012)

(awarding over $300,000); see also Bd. Of Trs. Of the Ohio Laborers Bens. Olive Leaf Landscaping,

Inc., No. 2:22-cv-2799, 2023 WL 8031493, at *3 (S.D. Ohio Nov. 20, 2023) (collecting cases).

This factor therefore weighs in favor of default judgment.

4. Possible Disputed Material Facts

As for the next factor, Defendants have not placed any material facts in dispute as they

have failed to appear or defend against this action. See Doc. 10. Additionally, because

Defendants have failed to respond to Rozzi’s Complaint and the Motion for Default

Judgment, Defendants have forfeited the right to dispute the allegations set forth therein. See

Evans Adhesive Corp., 2023 WL 7130676, at * 3. Thus, this factor weighs in favor of default

judgment.

5. Excusable Neglect

Like the previous factor, this Court is unable to attribute Defendants’ default to

excusable neglect because Defendants have failed to appear or otherwise defend in this action

despite proper service of process. See Doc. 10. This fact is indicative of actual disregard rather

than excusable neglect. United States v. Intelligent Perimeter Sys., No. 2:21-cv-1913, 2022 WL

3348653, at *4 (S.D. Ohio Aug. 12, 2022). This factor therefore favors default judgment.

6. Preference for Decision on the Merits

As a final consideration, the Court must account for “the strong policy underlying the

Federal Rules of Civil Procedure favoring decisions on the merits.” Eitel, 782 F.2d at 1472.

By its nature, default judgment conflicts with merits-based decisions. But in cases such as this,

where Defendants have shown no interest in pursuing a decision on the merits, it is

appropriate to consider the need for judicial efficiency and the needs of the litigants that have

actually appeared before the Court. There are no mitigating factors that weigh against default

judgment. Thus, the Court is compelled to resolve this case through default judgment.

Accordingly, default judgment shall be issued against Defendants.

B. Plaintiff is entitled to monetary damages and interest.

Having found that Rozzi is entitled to default judgment, this Court now considers

Rozzi’s request for damages. “Even when a default judgment is warranted based on a party’s

failure to defend, the allegations in the complaint with respect to the amount of damages are

not deemed true.” Vesligaj v. Peterson, 331 F. App’x 351, 355 (6th Cir. 2009). “The district

court must instead conduct an inquiry in order to ascertain the amount of damages with

reasonable certainty.” Id. While “the court may conduct an evidentiary hearing to determine

damages, an evidentiary hearing is not a prerequisite to the entry of default judgment if

damages are contained in documentary evidence or detailed affidavits and can be ascertained

on the record before the court.” Joe Hand Promotions, Inc. v. RPM Mgmt. Co. LLC, No. 2:11-cv-

377, 2011 WL 5389425, at *1 (S.D. Ohio Nov. 7, 2011) (citation omitted). Based on the

evidence presented in support of Rozzi’s Motion for Default Judgment, including the at-issue

invoice (Doc.1-1), the emails between the parties discussing the lack of payment (Docs. 1-2,

1-3), and the affidavit submitted by Rozzi’s counsel (Doc. 8-1), the Court finds a hearing on

damages to be unnecessary.

1. Monetary Damages

Rozzi requests $148,200.00 in monetary damages. Doc. 10. This amount represents

the contract value of the fireworks at issue. Compl., Doc. 1, ¶ 25. Having found that Rozzi

has stated sufficient and meritorious claims for conversion and breach of contract, the Court

will consider damages under that lens.

“The damages awarded for a breach of contract [under Ohio law] should place the

injured party in as good a position as [it] would have been but for the breach.” Walters v.

Goddard, 2018-Ohio-5184, ¶ 22 (11th Dist. 2018) (citation omitted). And in a conversion

action, damages equate to “the value of the converted property at the time it was converted.”

Tabar, 97 Ohio App. 3d at 428 (citation omitted). To date, Defendants have failed to fully

compensate Rozzi for the fireworks at issue. Rozzi alleges that Defendants have an

outstanding balance of $148,200.00 based on an invoice sent by Rozzi to Defendant Grucci

and the email correspondence between the parties about the lack of payment. Compl., Doc 1-

1, 1-2, 1-3. However, the record indicates that Defendants tendered a check to Rozzi for

$50,000.00. Though Rozzi represents that Defendants requested that the check not be cashed,

there are no facts that confirm whether Rozzi is still in possession of the check or whether the

check was ever cashed. Compl., Doc. 1, ¶ 9.

Accordingly, within 21 days of the entry of this Order, Rozzi is ORDERED to

supplement the record with evidence clarifying whether the check was cashed or whether the

check remains in Rozzi’s possession. The Court will defer any decision on the amount of

damages Rozzi is owed until such time as it receives supplemental documentation from

Rozzi.

2. Postjudgment Interest

Rozzi also seeks postjudgment interest on its request for damages. Doc. 10, Page ID

45. In diversity cases such as this, “federal law controls postjudgment interest[.]” Est. of Riddle

ex rel. Riddle v. S. Farm Bureau Life Ins. Co., 421 F.3d 400, 409 (6th Cir. 2005) (quotation

omitted).

Rozzi is entitled to postjudgment interest at the applicable statutory rate from the date

of this Order until the entire judgment is satisfied. As is relevant here, “28 U.S.C § 1961(a)

requires postjudgment interest to be paid on money awarded by district courts in civil

actions.” CAPSA Sols., LLC v. Concord Healthcare Grp., LLC, No. 2:18-cv-594, 2019 WL

4894038, at *3 (S.D. Ohio Oct. 4, 2019) (citation omitted). “The district court has no

discretion to deny postjudgment interest, as it is mandatory.” Id. (citing Caffey v. UNUM Life

Ins. Co., 302 F.3d 576, 586 (6th Cir. 2002)). “Such interest shall be calculated from the date of

the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity

Treasury yield, as published by the Board of Governors of the Federal Reserve System, for

the calendar week preceding the date of the judgment.” 28 U.S.C. § 1961(a).

3. Attorney’s Fees and Costs

Finally, Rozzi seeks attorney’s fees and costs. Compl., Doc. 1, PageID 5; Doc. 10,

PagelID 45. But “[i|t has long been the general rule in the United States that a prevailing party

may not ordinarily recover attorney’s fees in the absence of a statute or enforceable contract

providing for a fee award.” Williams v. ABX Air, Inc., No. 1:06-cv-833, 2007 WL 2886283, at

*7 (S.D. Ohio Sept. 27, 2007) (citing Shimman v. Int’l Union of Operating Eng’rs, Loc. 18, 744

F.2d 1226, 1229 (6th Cir. 1984)). Rozzi did not provide a copy of a written contract between

the parties, nor has it directed the Court to a statute providing for an award of attorney’s fees.

Thus, Rozzi is not entitled to attorney’s fees and costs.

I. CONCLUSION

For the reasons set forth herein, Rozzi’s Motion for Default Judgment (Doc. 10) is

GRANTED as to Rozzi’s claims for civil conversion (Count I) and breach of contract (Count

III). Accordingly, default judgment is ENTERED in favor of Rozzi on its civil conversion

and breach of contract claims. Rozzi is ORDERED to supplement the record within 21 days

of the entry of this Order to clarify whether the $50,000.00 check was cashed. The Court will

refrain from finalizing the amount of damages that are to be awarded to Rozzi until receipt

of this supplement evidence. Rozzi’s Motion for the Court to Set a Hearing on its Motion for

Default Judgment (Doc. 11) is DENIED AS MOOT.

IT IS SO ORDERED.

December 2, 2025 larg Sobers

effefy P ZAopkins

United States District Judge

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