See id. at 517-18 (applying the three-year limitations period where the trustee asserted wrongful-distribution claims on behalf of the debtor for funds that were transferred to the parent creditor and subsequently transferred to individuals) (citing O'Connell v. Shallo (In re Die Fliedermaus LLC), 323 B.R. 101, 104-05, 108 (Bankr. S.D.N.Y. 2005) (applying the three-year limitations period where the defendant members of the debtor made wrongful distributions from the debtor to themselves)). Courts limit the application of section 508 where the trustee instead sues as a creditor.

See Solomon v. Barman (In re Barman), 237 B.R. 342, 348-49 (Bankr.E.D.Mich.1999); O'Connell v. Shallo (In re Fliedermaus LLC), 323 B.R. 101, 111 (Bankr.S.D.N.Y.2005); Douglas v. Kosinski (In re Kosinski), No. 06-1400, 2009 WL 261538, at *14 (Bankr. D.Mass. Feb. 4, 2009).

But, the court can find guidance in the rules as to corporations. 11 U.S.C. §§ 101(9), (31); O'Connell v. Shallo (In re Die Fliedermaus, LLC), 323 B.R. 101 (Bankr. S. D. N. Y. 2005); Smith v. Porter (In re Carr Porter, LLC), 2009 WL 903258 (Bankr. E. D. Va. Mar. 17, 2009). The cited cases involved debtors who were LLC's, not individuals. With regard to corporations, however, the definition of corporate insiders of an individual debtor mirrors the definition of individual insiders of a corporate debtor.

Thus, the Youngs define a distribution as any money taken out of the LLC by or for a member of the LLC. In support of this definition, the Youngs primarily rely on O'Connell v. Shallo (In re Die Fliedermaus, LLC), 323 B.R. 101 (Bankr.S.D.N.Y. 2005). In that case, the trustee was pursuing avoidance actions against the members of the LLC based on distributions paid by the members to themselves while the LLC was insolvent.

”); In re Pearson, No. 1:10–bk–00946MDF, 2010 WL 3956762, at *3 (Bankr.M.D.Pa.2010) (“In Pennsylvania, members of limited liability companies are individuals with an ownership interest in the LLC and a right to participate in the management of the business.... Since [the LLC member] is a member of the LLC, [the LLC] is an ‘insider’ of [the LLC member].”); In re Die Fliedermaus LLC, 323 B.R. 101, 111 (Bankr.S.D.N.Y.2005) (“[T]he [New York Limited Liability Company Law] presumptively puts members in control of the LLC, and as such they are in a position to exert influence over the LLC. This sufficiently places them within the parameters of the Bankruptcy Code's definition of insider.”).

Since the insolvency of Tronox is a hotly contested factual question, it follows that this branch of the motion to dismiss must be denied."); In re Die FliedermausLLC , 323 B.R. 101, 106-07 (Bankr. S.D.N.Y. 2005) (finding issue of insolvency "a question of fact" and allegations that debtor was insolvent "adequate pleading"). Accordingly, the Court concludes that plaintiff's allegation that Elk was insolvent by December 31, 2010 (Compl. ¶ 105), considered with plaintiff's other allegations regarding Elk's financial condition (see, e.g., id. ¶¶ 68-69, 97, 102-10, 120-22), is sufficient for purposes of Federal Rule of Civil Procedure 8(a) to put defendants on notice regarding Elk's alleged insolvency, and to survive a motion to dismiss.

The duty on a manager imposed by New York Limited Liability Company Law § 409 "is the same fiduciary standard applied to corporate directors." In re Die Fliedermaus LLC, 323 B.R. 101, 110 (Bankr. S.D.N.Y. 2005) (citing 16 N.Y. Jur. Business Relationships § 2107). Plaintiff alleges Defendant breached his duties to the company in at least six different ways. Compl. ¶ 46; Pl.'s Mem. L. at 12-13.

To the extent certain opinions cited by defendants apply the limitations period specified in Section 508(c), the court notes that the plaintiffs in those cases were bankruptcy trustees—not outside creditors—seeking to recover improper distributions made by a LLC to its members. See Williamson v. Culbro Corp. Pension Fund, 41 A.D.3d 229 (1st Dep't 2007); In re Die Fliedermaus LLC, 323 B.R. 101, 106-07 (Bankr. S.D.N.Y. 2005). It appears that two New York trial court opinions read such cases to apply Section 508(c)'s three-year limitations period on fraudulent conveyance claims by outside creditors. See Mostel v. Petrycki, 25 Misc. 3d 929, 932, 885 N.Y.S.2d 397, 399 (Sup. Ct. 2009); Peckar & Abramson, P.C. v. Lyford Holdings, Ltd., 1009 NY Slip Op 33023(U) (Sup. Ct. N.Y. Co. 2009).

Generally, an insider is “ ‘one who has a sufficiently close relationship with the debtor that his conduct is made subject to closer scrutiny than those dealing at arms length with the debtor.’ ” In re Die Fliedermaus LLC, 323 B.R. 101, 111 (Bankr.S.D.N.Y.2005) (quoting Pan Am Corp. v. Delta Air Lines, 175 B.R. 438, 499 (S.D.N.Y.1994)); see also11 U.S.C. § 101(31)(B) (setting out non-exhaustive list of persons and entities that qualify as “insiders”). In cases involving insiders, the focus is ordinarily on “the fairness of [the insider's] transactions with the debtor” because the insider exercises some control over the debtor.

Courts routinely apply this three-year time limit to avoidance actions under 11 U.S.C. § 544 and cases involving NYLLCL Section 508. See, e.g., O'Connell v. Shallo (In re Die Fliedermaus LLC), 323 B.R. 101, 108 (Bankr. S.D.N.Y. 2005).