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Argued: October 27, 2000

Appeal from an order dismissing appellant’s complaint and granting appellees’ counterclaim, by the United States District Court for the Southern District of New York (Harold Baer, Jr., Judge). The parties consented to the district court deciding the case on a statement of agreed facts. The parties never agreed upon such a statement, but, after conflicting statements were submitted, the district court resolved disputed factual issues and entered its judgment. We vacate the judgment and remand for further proceedings.

Midpoint Service Provider, Inc. appeals from Judge Baer’s order dismissing its complaint and granting judgment on Connecticut General Life Insurance Company (“CG”) *fn1 and The Developmental Disabilities Institute Health Plan’s (“DDI”) counterclaim. See Midpoint Service Provider, Inc v. CIGNA, No. 98 CIV 5987, 2000 WL 272306 (S.D.N.Y. Mar. 10, 2000). The parties consented to the district court’s deciding the case on the basis of a statement of agreed facts. However, the parties could not reach an agreement upon such a statement. Both sides made conflicting submissions to the district court without any guiding procedural structure, such as would have been provided by a motion under Fed. R. Civ. P. 56. The district court then resolved disputed factual issues, dismissed the complaint, and entered a money judgment on the counterclaim. Because there was no explicit consent by appellant to the procedure followed and because appellate review regarding the merits and even subject matter jurisdiction is impossible on the present record, we vacate and remand for further proceedings.

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