concurring.
I concur and add a few words only to call attention to what the court has not decided.
Rule 4(j) expressly directs that an action “shall be dismissed” if service of the summons and complaint “is not made ... within 120 days after the filing of the complaint” and good cause cannot be shown for the delay. Use of the word “shall” makes clear that the rule is mandatory.
What is not clear from the language of this mandatory rule is whether it is intended to apply only to complaints that have never been served, or also to complaints that have been served within the limitation period but after the passage of 120 days. Unquestionably the Rule contemplates dismissal of unserved complaints. It expressly instructs the court to dismiss “upon the court’s own initiative.”1 This has the ben*1097eficial effect of clearing the court’s docket of stale unperfected filings and relieving putative defendants of the stigma of publicly filed but unprosecuted charges that have not been served.
To construe the rule as requiring in addition the dismissal of served complaints can lead to bizarre and draconian results that may not have been intended. Assume a complaint served 125 days after filing, within the limitations period. The defendant then moves under Rule 4(j) to dismiss. The broader construction of the rule would impose meaningless expensive paperwork on the court, requiring it to process first the dismissal and then the reopening of the case; it would also require the plaintiff to pursue the silly and wasteful exercise of preparing a new complaint, refiling, paying a new filing fee and embarking once again on the quest to make personal service on the defendant. It is hard to imagine the rule was intended to require such a round of useless activity. Far worse, however, are the consequences in this hypothetical case if the limitation period were to expire before the court orders the dismissal. Then the plaintiff may find himself barred from prosecuting a valid cause of action, notwithstanding that he both filed and served within the limitation period. The rule could thus have the drastic effect of shortening the statute of limitations.2 It is certainly open to question whether this was the intention.
One court of appeals has upheld a dismissal of a served complaint. See Lovelace v. Acme Markets, Inc., 820 F.2d 81 (3rd Cir.1987), cert. denied, 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395 (1987). This circuit has also suggested the appropriateness of such a dismissal in dictum. See Yosef v. Passamaquoddy Tribe, 876 F.2d 283 (2d Cir.1989) (while affirming dismissal both for failure to state claim and untimeliness under statute of limitations, court of appeals suggested district court might also have dismissed under Rule 4(j) in view of absence of good cause for tardy service). These decisions, however, simply assumed, based on the language of mandatory dismissal, that the rule had universal application; they discussed only whether good cause was shown. Neither considered whether Rule 4(j) should be understood to apply only to unserved complaints.3
Nor has the appellant raised the issue here. Appellant argued a different proposition — that Rule 4(j) does not permit dismissal after the statute of limitations has expired. Judge Kearse’s opinion properly rejects that meritless argument. See also Norlock v. City of Garland, 768 F.2d 654, 658 (5th Cir.1985).
Because of the vagueness of the appellant’s arguments coupled with the clear assertion in dicta in the majority opinion that none of them have merit, I add these words only to make clear that the court’s opinion does not purport to address the applicability of Rule 4(j) to complaints that have been served within the limitation period, although not within 120 days.
One other point is worth noting. The majority opinion asserts, by reason of defendant’s waiver, that “the district judge should not have dismissed the complaint.” Although I agree that the complaint should be reinstated, that is because the defendant sandbagged the plaintiff by failing to give clear, timely notice of its claim that the service of process was ineffective. This court rules, and I agree, that this conduct waived the objection. It does not follow that the district judge made any error. Plaintiff below never pointed out or argued to the district judge that defendant had waived the objection by its answer. (Indeed, plaintiff never raised it on appeal *1098until this court probed the issue on oral argument.)
. The fact that the rule also expressly contemplates dismissal “upon motion” seems to me to convey no suggestion one way or the other as to whether served complaints are covered. Mo*1097tions to dismiss can be made, and frequently are, by defendants who have not been served.
. As the majority opinion notes, a plaintiff in such circumstances may arguably be entitled to a tolling of the statute to protect against an unfair result. At best, however, such relief would be in the court’s discretion.
. Only one court decision has considered the ambiguity as to the scope of the rule’s coverage. Burks v. Griffith, 100 F.R.D. 491, 492 (N.D.N.Y.1984), considered the question and opted with little discussion for the broader interpretation.