In Smith v. Hogan, the US Court of Appeals for the Second Circuit held that an affidavit attached as an exhibit to a complaint is not a "written instrument" deemed part of the complaint pursuant to Federal Rule of Civil Procedure (FRCP) 10(c). The allegations contained in the affidavit therefore cannot be considered in a motion to dismiss. The decision highlights a circuit split on this question, with the Second and Third Circuits holding that an attached affidavit is not a written instrument, and the Seventh Circuit holding that an affidavit is.