                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 06a0391p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                           X
                                      Plaintiff-Appellant, -
 SHABTAI STEVE ADIKA,
                                                            -
                                                            -
                                                            -
                                                                No. 05-6831
               v.
                                                            ,
                                                             >
 MIKE SMITH,                                                -
                                    Defendant-Appellee. -
                                                           N
                              Appeal from the United States District Court
                          for the Western District of Kentucky at Louisville.
                         No. 05-00307—Charles R. Simpson III, District Judge.
                                         Argued: September 12, 2006
                                   Decided and Filed: October 24, 2006
        Before: BOGGS, Chief Judge; MARTIN, Circuit Judge; OLIVER, District Judge.*
                                              _________________
                                                    COUNSEL
ARGUED: Finis Raymond Price III, DeCAMILLIS & MATTINGLY, Louisville, Kentucky, for
Appellant. Douglas C. Ballantine, STOLL KEENON OGDEN, Louisville, Kentucky, for Appellee.
ON BRIEF: Finis Raymond Price III, DeCAMILLIS & MATTINGLY, Louisville, Kentucky, for
Appellant. Douglas C. Ballantine, Justin D. Clark, STOLL KEENON OGDEN, Louisville,
Kentucky, for Appellee.
                                              _________________
                                                  OPINION
                                              _________________
        BOYCE F. MARTIN, JR., Circuit Judge. This case is a contract dispute between Mike
Smith, a thoroughbred jockey, and Shabtai Steve Adika, his former agent. Adika seeks a portion
of the yearly stud fee from the stallion Unbridled’s Song. The district court dismissed the case
because it was time-barred by the applicable statute of limitations. Adika appeals that decision. For
the following reasons, we affirm.




         *
          The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District of Ohio, sitting by
designation.


                                                          1
No. 05-6831              Adika v. Smith                                                                      Page 2


                                                          I.
       Adika operated as the agent for Smith, a thoroughbred jockey, from 1989 to 1999. As is
customary in this business, no written contract ever existed between the two. The two men worked
from an oral contract in which Adika would receive thirty percent of all of Smith’s earnings. Smith
fired Adika in November 1999.
        The thoroughbred horse Unbridled’s Song retired in 1997 following a successful racing
career.1 At that time, Ernie Paragallo, the owner of Unbridled’s Song and Paraneck Stable, entered
into a Syndicate Agreement that, inter alia, granted Smith a portion of the yearly stud fee as
appreciation for his role in the success of the horse. Adika was not a party to the Syndicate
Agreement. Unbridled’s Song stood at stud from 1997 to 2005, and Smith was paid a portion of
each year’s fee.
        On May 5, 2005, Adika filed this lawsuit in the Circuit Court of Jefferson County, Kentucky,
alleging that he was owed his thirty percent of the yearly stud fee granted to Smith beginning with
the 1997 payment. Smith removed the action to federal court on the basis of diversity jurisdiction.
On November 7, the district court dismissed the action against Smith as being time-barred by the
statute of limitations. Adika filed a Notice of Appeal to this court on December 30.
                                                         II.
         We review a Rule 12(b)(6) dismissal for failure to state a claim de novo. Kottmyer v. Maas,
436 F.3d 684, 688 (6th Cir. 2006). “Under Rule 12(b)(6) ‘a complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.’” Id. (quoting Conley v. Gibson, 355 U.S.
41, 45-46 (1957)). In reviewing a 12(b)(6) dismissal, this court must accept all facts in the
complaint as true and construe the complaint liberally in favor of the plaintiff. Id.
        The parties agree that the only contract between Smith and Adika was the original oral
contract which defined their jockey-agent relationship. Both parties have stipulated that the
appropriate law to apply in this diversity case is that of the Commonwealth of Kentucky. The
Kentucky statute of limitations on actions accruing from a contract not in writing is five years.
K.R.S. § 413.120. Adika filed his suit against Smith in May 2005, five years and six months after
Adika and Smith’s relationship was terminated. Based on this time delay, the district court held that
the suit was time-barred by the statute of limitations.
        Adika points to several reasons why this holding by the district court is incorrect. First, he
claims that his right to a portion of the stud fee of Unbridled’s Song is not contingent on the agent
relationship between him and Smith. Second, Adika argues that the statute of limitations did not
begin to run in November 1999 as held by the district court.
         As proof that the stud fee was not contingent on the agent relationship, Adika relies on a
letter from Ernie Paragallo, written in April 2004. This letter states that “[t]he purpose and
understanding was for both the Jockey and his Agent, under their normal business percentage, to
earn the yearly gifted stud fee.” Adika argues that this letter demonstrates he was entitled to the stud
fee for the entirety of Unbridled’s Song’s stud career, separate and distinct from his agent
relationship with Smith. Adika argues that the letter, by specifically mentioning “Agent,”
demonstrates that he was entitled to a portion of the stud fee without relying on the agent

         1
          Unbridled’s Song had five first place finishes, including the Breeder’s Cup Juvenile and the Florida Derby,
and three second-place finishes in twelve starts, yielding a career earnings of $1.3 million. “Taylor Made Stallions -
Unbridled’s Song,” http://www.taylormadestallions.com/UnbridledsRace.html?a=10089.
No. 05-6831            Adika v. Smith                                                             Page 3


relationship. If the stud proceeds were to be paid because of the agent relationship, the gift would
have been given solely to Smith, and Adika would have been entitled, through the agent relationship,
to his thirty percent portion of the stud fee.
        Adika’s reliance on the letter and the subsequent arguments based on that letter must fail.
Even if we are to assume that it was in fact Paragallo’s intent in 1997 to make a gift to Adika, this
intent does not impose any obligation upon Smith. Rather, any duties owed by Smith to Adika were
contained in their oral agency contract. Unfortunately for Adika, he filed his complaint more than
five years after Smith terminated their agency arrangement, at which point the statute of limitations
had expired.
        Even if we accept Adika’s argument that the letter is sufficient proof that Paraneck Stable
granted him a fee, the language of the letter specifically states that the stud fee given to “Agent” was
to be given under their “normal business percentage.” It appears that the letter demonstrates that
the stud fees were to be given to Adika only as a portion of Adika and Smith’s normal business
practice and, therefore, through their agent relationship. The letter does not remove the stud fee
transaction from the ambit of the agent relationship. Furthermore, even assuming, as Adika argues,
that the stud fee was not a part of the agent relationship, Smith would not be a proper party to this
action. If the stud fee grant was separate from the agent relationship, then the duty to pay Adika
would fall to Paraneck Stable. Adika cannot argue that Smith has been paid the entire portion of the
stud fee and that Smith was supposed to pay him thirty percent of those proceeds without relying
on the agent relationship. Without reference to the oral contract defining their agent relationship,
it is wholly unclear where any such duty for Smith would have originated.
        Adika’s second argument challenging the district court’s dismissal of his claim is that the
statute of limitations did not begin to run when the agent relationship ended in November 1999,
because every year Smith has failed to deliver Adika’s portion of the stud fee created a new cause
of action. Therefore, Adika argues that the statute of limitations only bars his recovery for the years
1997 to 1999, that is, any years beyond five years prior to his filing this lawsuit on May 5, 2005.
Adika relies on Commonwealth of Kentucky v. Polk, 75 S.W.2d 761, 764 (Ky. 1934), and McKee
v. Lamon, 159 U.S. 317, 322 (1895), to support his claim that a new cause of action arose each year.
        Upon closer inspection, each of these cases involve the relationship between a bailor and a
bailee. “[A] bailment is created by contract,” Jones v. Hanna, 814 S.W.2d 287, 289 (Ky. App.
1991), and is comprised of the delivery of an item “in trust for some special object or purpose,”
Polk, 75 S.W.2d at 764. Adika, therefore, appears to be arguing that a bailment was created between
himself and Smith, namely that Smith would hold Adika’s money in the stud fee for him, for
delivery at a later date. Generally, in order for a bailment to exist,
        [t]here must . . . be some affirmative act or conduct of the party sought to be charged as
        bailee; delivery and acceptance must be present for a bailment to arise. That is, absent some
        form of understanding between the parties, the formation of an implied-in-fact bailment
        contract cannot take place. There must be a substantive foundation in the acts or conduct
        of the party sought to be bound on which an implied contract of bailment can rest.
8A Am. Jur. 2d Bailments § 37 (citations omitted, emphasis added).
        In the case at bar, there is nothing in the record to support the existence of a contract creating
a bailment, nor any explicit or implicit understanding between them that Smith would hold the
yearly stud fees “in trust” for Adika. The Syndicate Agreement between Paraneck Stable and Smith
does not evince any intent on the part of Smith to remit a portion of his fees to Adika, and as such,
the Agreement cannot be read to create a bailment in which Smith would serve as a bailee for Adika.
No. 05-6831           Adika v. Smith                                                          Page 4


       The only evidence Adika offers to support his claim that a bailment was created is the letter
from Paragallo on behalf of Paraneck Stable. A third party’s understanding of the relationship
between Smith and Adika, written seven years after the fact, does nothing to demonstrate that Smith
was on notice that he acted as a bailee for Adika.
         Adika’s argument that a new cause of action accrued each year may have been meritorious
had he been able to demonstrate that his agency contract with Smith was severable. For a contract
that is continuous in nature, the statute of limitations does not begin to run until the contract’s
termination. On the other hand, for a contract that is severable in nature, the statute of limitations
begins to run on each particular part of the contract when a party breaches that part. See, e.g.,
Allapattah Servs. v. Exxon Corp., 188 F.R.D. 667, 680 (S.D. Fla. 1999) (a well-written district court
opinion stating this proposition in the context of a sales contract), aff’d, 333 F.3d 1248 (11th Cir.
2003), aff’d sub nom. Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546 (2005). In the present
case, the contract at issue is an oral agency contract providing that Adika would receive 30% of
Smith’s earnings while Adika worked as his agent. Adika does not produce any evidence or
documentation demonstrating that it was the parties’ intention to make this contract severable in
nature. Rather, it appears to be an indivisible agency contract that was terminated in its entirety in
November 1999. Therefore, the statute of limitations expired in November 2004, and Adika’s claim
is thus time-barred.
       The decision of the district court is affirmed.
