Fitzgerald and dismiss plaintiff's cause of action against him. Federal Rule of Civil Procedure 4(m) states that if the complaint is not served upon a defendant within 120 days after the filing of the complaint, the court may, on its own initiative, dismiss the action without prejudice. Defendant Fitzgerald resides in and is a citizen of Ireland and the 120-day time period for service can be extended for service outside of the United States. However, because plaintiff has never attempted to serve Fitzgerald and more than six months has accrued since the Amended Complaint was filed on May 13, 1999, this Court will exercise its discretion and dismiss plaintiff's claims against Fitzgerald for failure to prosecute. See Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 (2d Cir.1985)
recognizing rule holding that rule 45b does not require personal service holding that the rule does not apply to bar tort claims against service providers holding that time limit in rule 35c predecessor to rule 35a  is jurisdictional holding that rule 4j predecessor rule to 4m s exemption for service in foreign countries does not apply where service under rule 4i predecessor to rule 4j  was never attempted