Brian Barlow v. George Ground, Officer 9129 L.O. Oberlies, Officer 1706 A. Tucker, Officer 9363 Ray Shay, Officer 3269

The estate of Brian Barlow appeals from an order of the district court dismissing Barlow’s civil rights action for failure to substitute the estate within the 90 day period provided by Federal Rule of Civil Procedure 25(a)(1). The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 , 1343, and we have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 . We reverse and remand.

I

Barlow was the plaintiff in a civil rights action against the City of San Diego and five of its police officers (City). In an earlier appeal, we held that the warrantless seizure of Barlow’s blood violated the Fourth Amendment, and remanded the case to the district court. Barlow v. Ground, 943 F.2d 1132, 1137-39 (9th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 2995 , 120 L.Ed.2d 872 (1992).

While the ease was on appeal, Barlow died. Thereafter, his attorney, Weingarten, continued to pursue settlement with the City. The City alleges Weingarten made statements that indicate he had secured authorization to settle from the personal representative of Barlow’s estate. Weingarten disputes this. After the prior appeal was final and the City’s writ of certiorari was denied, the City…