9. I certify that the foregoing statements made by me are true. | am aware that if any

of the foregoing statements made by me are willfully false, I am subject to punishment.

Dated: June 14, 2011

HAHOME\DK \Zelma\Notice of Removal.doc

McELROY, DEUTSCH, MULVANEY &
CARPENTER, LLP

Attorneys for Defendant,

Medco Health Solutions, Inc., d/b/a Medco

—FENN M. SCHNEIDER
jschn | er@mdme-law.com



McELROY, DEUTSCH, MULVANEY & CARPENTER, LLP
1300 Mount Kemble Avenue

P.O. Box 2075

Morristown, New Jersey 07962-2075

(973) 993-8100

Attorneys

nt, Medco Health Solutio:

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

RICHARD M. ZELMA,

Plaintiff,

vs. : CIVIL ACTION NO.

MEDCO HEALTH SOLUTIONS, INC.
d/b/a MEDCO, VAROLIL, INC., WEST
CORPORATION d/b/a WEST
BUSINESS SERVICES INC.,
JANETTE KAY NELSON, JOHN
DOES (1-10) and ABC
CORPORATIONS (1-10), each acting
individually, in concert, or as a group,

Defendants.

CIVIL ACTION — NOTICE OF REMOVAL

PLEASE TAKE NOTICE that the undersigned attorneys for defendant, Medco Health
Solutions, Inc., d/b/a Medco (hereinafter referred to as “Medco”), petition this Honorable Court
for an order pursuant to 28 U.S.C. § 1441, et seq., removing to the United States District Court,
District of New Jersey, a matter instituted in the Superior Court of New Jersey, Law Division,

Bergen County, bearing Docket Number BER-L-3778-11.


PLEASE TAKE FURTHER NOTICE that a copy of this removal petition has been
filed with the Clerk of the Superior Court, Law Division, Bergen County, thereby effecting
removal pursuant to 28 U.S.C. § 1446(b).

PLEASE TAKE FURTHER NOTICE that by effecting removal of this civil action,
Medco reserves all rights to raise any and all defenses available under the Federal Rules of Civil
Procedure including, but not limited to, FED. R. Crv. P. 12.

PLEASE TAKE FURTHER NOTICE that in support of this notice of removal, Medco
relies upon the following:

1, On or about April 27, 2011, Richard M. Zelma, pro se, filed a complaint in the
Superior Court of New Jersey, Law Division, Bergen County, bearing docket no. BER-L-3778-
11. Annexed hereto as Exhibit “A” is a copy of the summons, complaint and civil case
information statement which constitutes all process, pleadings and/or orders served upon and
first received by Medco to date within the meaning and intent of 28 U.S.C. § 1446.

2. Medco was first served with the summons, complaint and civil case information
statement on May 16, 2011. Removal is therefore timely under 28 U.S.C. § 1446(b) in that the
filing of the within petition occurred prior to the expiration of 30 days of service of summons
and complaint.

3. In his complaint, Zelma not only alleges violations of New Jersey State statutes
and 47 U.S.C. § 227, which provides for state court jurisdiction over certain claims arising out of
the federal statute; he also alleges violations of other federal statutes that do not include similar
provisions,

4. The Court’s review of the complaint will reveal that Zelma alleges that he was

contacted by West and Varolii on various occasions on behalf of Medco and, as concerning the

HAHOME\DR\Zelma\Notice of Removal.doc 2


contact by West, at the direction of Nelson. (Complaint §§8, 18, 26, 34). Zelma alleges that he
had previously instructed Medco not to call or share his medical information or phone numbers
with anyone unless it related to a medical related need or urgency. (Complaint 413). Plaintiff
alleges that the sharing of medical/pharmaceutical information by Medco with Varolii, West and
Nelson is a violation of the Health Insurance Portability and Accountability Act of 1996
(“HIPAA”), P.L. 104-191, 42 U.S.C. §1320d-1320d-8; 45 CFR Parts160 and 164. (Complaint
4 13, 43, 49).

5. Plaintiff alleges that the defendants violated 47 U.S.C. § 217 by “failing to act to
stop such calls under their employment, direction and/or control.” (Complaint {{ 63-64).

6. Plaintiff further alleges that the defendants violated 47 U.S.C. § 223 (a)(1)(C) by

“making a telephone call or utilizing a telecommunications device, whether or not conversation
or communication ensued, without disclosing their identity and with intent to annoy, abuse, or
harass plaintiff at his home”; 47 U.S.C. § 223 (a)(1)(D) by “making or causing Plaintiffs
telephone to repeatedly or continuously ring, with intent to harass Plaintiff at his home”; and 47
U.S.C. § 223 (a)(1)(E) by “initiating excessive and repeated telephone calls or repeatedly
initiating communication with a telecommunications device, some of which conversation or
communication ensued, solely to harass Plaintiff at his home.” (Complaint {{ 65-70).

7. Removal is therefore appropriate under and pursuant to 28 U.S.C. § 1441(a) and

(b). See, Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987).

8. All defendants have consented to the removal of this matter. Submitted
separately herewith are two Notices of Consent to Remove executed by Howard B. Mankoff,
Esq. on behalf of West Corporation and Janette Kay Nelson, and Jeff Shelby, Esq. on behalf of

Varolii Corporation.

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